Caroline Yip v VIC Roads Corporation
[2022] FWC 1394
•2 JUNE 2022
| [2022] FWC 1394 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Caroline Yip
v
VIC Roads Corporation
(U2022/22)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 2 JUNE 2022 |
Application for an unfair dismissal remedy – s.399A application to dismiss.
On 31 December 2021 the applicant, Ms Caroline Yip, applied under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy, alleging that she had been unfairly dismissed from her employment with VIC Roads Corporation, the respondent.
The application was listed for a conciliation before a staff conciliator of the Commission at 9.15am on Monday, 28 February 2022. At 6:32am Ms Yip emailed the staff conciliator requesting an adjournment due to her illness. The staff conciliator granted that adjournment, and the conciliation was rescheduled. Following an unsuccessful conciliation conference, the matter was allocated to me for determination.
On 23 March 2022, I issued directions requiring, inter alia, the applicant to file in the Commission and serve on the respondent an outline of submissions, any statement(s) of evidence and any documentary material(s) on which she intends to rely in support of her application by 5.00pm on Wednesday, 13 April 2022. The matter was listed for hearing at 10.00am on Friday, 20 May 2022.
On 13 April 2022, the applicant filed her material in the Commission, however failed to serve it on the respondent. On 20 April 2022, the respondent made an application by email pursuant to s.399A of the Act for the application be dismissed on the basis that the Applicant acted unreasonably by failing to comply with a direction or order of the Commission relating to the application on the understanding the applicant had not filed her material. My associate then forwarded the respondent the applicant’s material and asked the respondent to advise whether it pressed its s.399A application. The respondent did not reply to this email and filed its material in accordance with the directions on Friday, 6 May 2022.
At 1.29am on 20 May 2022, the applicant emailed my Chambers stating that she was unable to attend the hearing due to commence at 10.00am “due to [her] medical condition” and requested that the hearing be rescheduled after she has fully recovered. The respondent opposed this request. The parties were advised that the hearing would proceed at 10:00am at least for the purpose of a mention.
Shortly after receiving the applicant’s email my associate attempted to call the applicant, leaving a voicemail message. The applicant returned that call shortly before the hearing was scheduled to start and told my associate that she was unwell, that she had a headache and was suffering from the flu. The applicant also advised my associate she was unable to attend the hearing for the purpose of a mention.
The hearing proceeded without the applicant in attendance. During the hearing, the respondent made an oral application under s.399A of the Act for the applicant’s unfair dismissal remedy application to be dismissed. The respondent submits that the applicant’s failure to attend was unreasonable taking into account a pattern of behaviour in which the applicant engaged which sought to delay the matter. The respondent points to the following events in support of its contention:
· the applicant’s email sent at 1:29am the morning of the hearing did not set out the nature of her medical condition nor did she provide any medical evidence of that condition;
· the applicant previously sought an adjournment of a conciliation conference before a staff conciliator for medical reasons in a similar nature at 6:30am on 28 February 2022 the morning of the conciliation;
· the applicant sought five extensions to her deadline to comply with the respondent’s show cause letter and failed to provide evidence of her vaccination status resulting in extensions to her suspension without pay period.
The respondent further contends that it is relevant to take into account its interests, including that it incurred costs arranging for three witnesses to clear their scheduled and attend the hearing and arranged for its counsel and solicitors to run the case.
Following the hearing, directions were issued requiring the applicant to provide medical evidence supporting her contended medical condition by 5:00pm on Tuesday, 24 May 2022 and to file submissions in opposition to the respondent’s s.399A application by midday on 30 May 2022. The applicant was provided with an audio recording of the hearing that afternoon and with a copy of the transcript on 23 May 2022.
On 23 May 2022, the applicant filed a medical certificate dated 19 May 2022 stating that she would be unfit for work from 19 to 20 May 2022 inclusive. On 30 May 2022, the applicant filed submissions stating that her failure to attend the hearing on 20 May 2022 was not unreasonable for the following reasons:
· she missed the hearing due to her health condition;
· she endeavoured to communicate this beforehand by email and phone calls to my associate; and
· she followed up by emailing a medical certificate confirming she was unwell.
The applicant also states that she has called the Commission several times to ensure all procedures are complied with and that she participated in conciliation sessions on three separate occasions, showing her genuine intention to resolve this matter with the help of the Commission.
Section 399A provides the Commission with a discretion to dismiss an unfair dismissal remedy application on application by an employer, in this case the respondent, in circumstances where the Commission is satisfied that an applicant has unreasonably failed to attend a conference conducted by the Commission, has unreasonably failed to attend a hearing held by the Commission or has unreasonably failed to comply with a direction or order of the Commission.
I am not persuaded that the applicant has unreasonably failed to attend a conference conducted by the Commission, nor that she has unreasonably failed to attend a hearing held by the Commission, nor that she has unreasonably failed to comply with a direction or order of the Commission. My reasons are set out below.
First, the conduct about which the respondent complains which occurred prior to the unfair dismissal remedy application made by the applicant, even if unreasonable, is not conduct upon which the Commission can rely for the purposes of s 399A of the Act, because self-evidently it is not directed to any failure to attend a conference or hearing conducted by the Commission or any failure to comply with any direction or order of the Commission. I accept however that the conduct may be relevant in assessing whether subsequent conduct related to any applicable failures to which s 399A directs attention was unreasonable.
Second, the conciliation conference scheduled by a staff conciliator was not a conference conducted by the Commission. Staff conciliators conducting conciliation conferences in connection with unfair dismissal remedy applications are not exercising any delegated power of the Commission. Participation in such conferences is voluntary and the Commission provides the option so that parties are given an early opportunity to explore the resolution of an application. Any failure to attend a conference before a staff conciliator is thus not a failure which is caught by s 399A of the Act. In any event, an application was made by the applicant to the staff conciliator for an adjournment of the scheduled conciliation conference, which application was granted. Thus, as the conference was adjourned there was no failure to attend.
Third, the failure by the applicant to serve a copy of her materials on the respondent, though doubtless causing inconvenience to the respondent, was not an unreasonable act in circumstances where the respondent is not represented and is likely not familiar with the requirements as to service. Her materials were filed on time. But even if the conduct was unreasonable because my directions made clear that the Applicant was required to serve on the respondent as well as file her materials in the Commission, I would not as a matter of discretion dismiss the application on this basis alone.
Fourth, as to the proceeding scheduled for hearing before me on 20 May 2022, it is now evident that the applicant was certified by a medical practitioner as unfit for the period 19 to 20 May 2022 inclusive. Although there was very late notice by the applicant of her situation, it cannot in the circumstances be said that the applicant unreasonably failed to attend the hearing. The applicant may be justifiably criticised for the late notice given of her request (which could only have been considered an hour or so before the scheduled commencement of the hearing) and the failure to supply a medical certificate along with her notice, which failure caused the hearing to proceed unnecessarily. Had that information been provided with the late notice, the respondent would likely have taken a different view as to its opposition to the adjournment request, and moreover it is likely that even if the respondent opposed the adjournment, I would have been minded, armed with a medical certificate, to have granted the adjournment thereby obviating the need for the hearing to have proceeded. But such matters do not provide me with a proper basis to dismiss the application under s 339A of the Act. Such matters may be relevant to other applications available to the respondent.
In the circumstances the respondent’s application under s 399A for dismissal of the applicant’s unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr L Howard of Counsel on behalf of the respondent
Hearing details:
2022
Melbourne (by Video)
20 May
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