Carrie Forrest v The Commonwealth of Australia as represented by Services Australia

[2023] FWC 3413

[2023] FWC 3413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal and s.399A – dismissal application

Carrie Forrest
v

The Commonwealth of Australia as represented by Services Australia

(U2023/10481)

COMMISSIONER CRAWFORD SYDNEY, 19 DECEMBER 2023

Application for an unfair dismissal remedy – application by employer for dismissal – failure to comply with directions – s.399A application dismissed

Background

1. On 25 October 2023, Carrie Forrest (Ms Forrest) made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with The Commonwealth of Australia as represented by Services Australia (Services Australia).

1. Ms Forrest’s application states she does not know the exact dismissal date, but indicated her application was not filed within 21 days of the dismissal taking effect. The application states Ms Forrest called to request shifts on 24 October 2023 and was informed that her employment had been terminated. The application identifies the following reason for missing the 21-day filing deadline:

“Correspondence was sent to an email address I no longer have access to, I was not          informed by phone or post and only discovered I had been terminated when calling to    request shifts.”

1. On 17 November 2023, Services Australia filed a Form F3 response form. The response form identifies a dismissal date of 30 August 2023 and indicated Ms Forrest was sent a dismissal letter via the email address she had provided to Services Australia, and that a phone message was also left informing her of the dismissal. As a result, the Form F3 identified that the application was not filed within 21 days of the dismissal taking effect and indicated Services Australia opposes the Commission granting an extension pursuant to s.394(3) of the FW Act.

1. On 20 November 2023, Ms Forrest sent an email to the Commission which provided the following further information regarding why she missed the filing deadline:

“My issue is I was unaware and did not receive any other correspondence as to the            outcome of the investigation, I do not know if I have had restrictions put on what         employment I can apply for and whether I can apply for APS jobs. They made no           attempt to contact me in any other way, despite having my address and phone number           and I have not received an Employment Separation Certificate.”  

1. On 23 November 2023, I issued directions for the filing of material regarding whether an extension of time should be granted for Ms Forrest’s application and listed a hearing regarding that issue for 18 December 2023. The directions required Ms Forrest to file any material she wishes to rely upon in support of an extension being granted by 5pm on 1 December 2023. Ms Forrest did not file any material in accordance with this direction and did not request an extension of her due date. 

1. On 5 December 2023, Services Australia wrote to my chambers and indicated it had not been served with any material by Ms Forrest. My chambers then wrote to Ms Forrest and asked for an explanation regarding her non-compliance with the direction. Ms Forrest was requested to respond by 5pm on 6 December 2023. Ms Forrest did not provide any response.

1. On 6 December 2023, Services Australia filed an application for Ms Forrest’s unfair dismissal application to be dismissed pursuant to s.399A of the FW Act. The application relies on Ms Forrest’s failure to comply with the direction to file material in support of an extension of time and her failure to provide an explanation for her non-compliance. Services Australia provided submissions in support of its application.

1. On 7 December 2023, my chambers sent a copy of Service Australia’s dismissal application and its submissions to Ms Forrest and requested that she provide a response by 5pm on 11 December 2023.

1. Ms Forrest did not file any material in response to Services Australia’s dismissal application by 5pm on 11 December 2023. However, on 12 December 2023, Services Australia sent my chambers an email it had received from Ms Forrest at 7:40pm on 11 December 2023. Ms Forrest’s email stated:

“I do not have any paperwork to respond with. I have requested the documentation under Freedom of Information from Services Australia, however they have requested an extension of 30 days to gather the information. 

My case was filed because I was informed by email which went to my spam and expired after 30 days. I was not contacted by phone or mail and did not know I had been terminated until requesting shifts, therefore I have no paperwork or documentation at present to submit.”

It is unclear why Ms Forrest did not send this email to my chambers. 

1. On 12 December 2023, my chambers sent an email to the parties indicating my provisional view was that Ms Forrest’s unfair dismissal application should not be dismissed and that further directions for the filing of material should be issued and a determinative conference/hearing listed in February 2024. The email requested that Services Australia confirms whether it presses its s.399A application.

1. On 13 December 2023, Services Australia responded and confirmed it did press its application. Services Australia submitted Ms Forrest has not provided a satisfactory explanation for not complying with the directions issued on 23 November 2023 and 5 December 2023 and she “made a conscious decision to not comply with them or otherwise engage with the Commission in any way.”

1. Later in the day on 13 December 2023, I directed Ms Forrest to file any material in response to the s.399A application by 5pm on 15 December 2023. The parties were also advised I intended to deal with the application on the filed material, subject to either party objecting to this approach by 5pm on 18 December 2023.

1. On 14 December 2023, my chambers advised the parties the directions issued on 23 November and the determinative conference/hearing listed for 18 December 2023 were vacated and that Services Australia’s s.399A application would be resolved before any other steps are taken in the proceeding.

1. At 7:40pm on 17 December 2023, Ms Forrest sent an email to my personal Fair Work Commission email account stating:

“I received notification that my hearing would be cancelled, will another date be made?

I do not have any documents to submit as yet I am still waiting for them from Services Australia.”

Services Australia was not copied into this correspondence. It is unclear why the email was not sent to the email address of my chambers given my personal Fair Work Commission email address has not been provided to Ms Forrest.

1. Neither party objected to me deciding Services Australia’s application on the papers and I consider it is appropriate to do so.

Statutory provisions

1. Section 399A of the FW Act provides:

“399A    Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

…

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

1. The relevant principles to consider Services Australia’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

Consideration

1. Section 399A(2) is obviously satisfied by Services Australia’s application.

1. Section 399A(1)(b) is capable of being satisfied because Ms Forrest failed to comply with my directions to file material on 23 November 2023, 5 December 2023, and 13 December 2023. The question is whether Ms Forrest has “unreasonably failed to comply” with the directions.

1. The difficulty I have in assessing Ms Forrest’s conduct is that it appears she does not wish to file any further material in support of an extension of time because she believes she has “no documents to submit”. Ms Forrest has provided this explanation on 11 December 2023 and 17 December 2023. I am not satisfied I can conclude Ms Forrest has “unreasonably” failed to comply with my directions in circumstances where she appears to genuinely hold the belief there is nothing she can file.

1. I consider it has been unreasonable for Ms Forrest to not advise the Commission and Services Australia by the various due dates that she did not intend to file any material. I am also extremely confused about why Ms Forrest did not send her email dated 11 December 2023 to the Commission and further why she only sent her email dated 17 December 2023 to my personal Fair Work Commission address and did not provide it to Services Australia. However, I am unclear at this stage whether this is deliberately defiant conduct or otherwise caused by confusion about the correct processes. I am not satisfied on the material before me that the conduct justifies the dismissal of Ms Forrest’s application.

1. The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Even if I had concluded s.399A(1)(b) was satisfied, I would not have exercised my discretion to dismiss Ms Forrest’s application. Contrary to Services Australia’s submission dated 6 December 2023, I do not consider this is a case where Ms Forrest “shows no willingness to prosecute the application.” Ms Forrest filed an application on 25 October 2023 and has now provided further material in support of an extension being granted on 20 November 2023, 11 December 2023, and 17 December 2023. While this material can be described as minimal and was not properly filed or served by Ms Forrest, it does show a degree of willingness to continue with her application.

1. While I understand Services Australia strongly contends that it took all reasonable steps to notify Ms Forrest of her dismissal on 30 August 2023, Ms Forrest appears to have a different view. Ms Forrest has asserted she only became aware of the termination when she called to request shifts on 24 October 2023. Although this appears reasonably unlikely on the filed material, if it is correct, Ms Forrest would not need an extension of time for the filing of her application. I am uneasy about dismissing Ms Forrest’s application when this factual issue has not been resolved.

1. I also consider the serious personal issues raised in Ms Forrest’s application warrant a cautious approach to assessing her conduct, particularly in circumstances whereby I have not had the benefit of observing Ms Forrest during any proceeding.  

1. While I can appreciate Services Australia’s frustration with how Ms Forrest has handled this matter, I do not consider it is appropriate for her unfair dismissal application to be dismissed at this stage. There is scope for this issue to be revisited in the future if further issues arise.

1. I dismiss Services Australia’s application for dismissal pursuant to s.399A of the FW Act.

1. I make the following directions in relation to the issue of whether Ms Forrest should be granted an extension of time to file her unfair dismissal application:

a.Ms Forrest is to file any further material she wishes to rely upon in support of an extension of time being granted by 5pm AEDT on 25 January 2024.

b.Services Australia is to file any material it wishes to rely upon in opposing an extension of time by 5pm AEDT on 9 February 2024.

1. I have also decided to list the extension of time issue for determinative conference/hearing via video at 10am AEDT on 14 February 2024. A notice of listing will be issued in due course.

COMMISSIONER

Determined on the papers.

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