Christine Clark v Oracle Financial Planning Pty Ltd T/A Oracle

[2017] FWC 2205

[2017] FWC 2205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christine Clark
v
Oracle Financial Planning Pty Ltd T/A Oracle
(U2016/15146)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 19 December 2016, Ms Christine Clark made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Clark said her employment had been terminated by Oracle Financial Planning Pty Ltd T/A Oracle on 1 December 2016.

[2] The matter was listed for conciliation on 27 January 2017, however, the matter was not resolved. Consequently, directions were issued and the matter was listed for Jurisdiction Hearing on 3 March 2017. Subsequently, on 27 February 2017, Oracle’s legal representative advised the Fair Work Commission that it did not have an objection to the application on the basis of Ms Clark not having served the minimum employment period. Consequently, on 1 March 2017, the Jurisdiction Hearing was cancelled and the matter was re-listed for Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Hearing on 8 to 10 May 2017. New directions were also issued on 1 March 2017, which required Ms Clark to file her material by noon, Monday 20 March 2017. Ms Clark did not comply with this direction.

[3] On 21 March 2017, Oracle filed a Form F1 in the Commission and made an application to dismiss Ms Clark’s application for unfair dismissal remedy under s.399A(1)(b) of the Act. Upon learning of Oracle’s s.399A application, Ms Clark’s representative, Mr Amad, requested an extension of time for filing her material to 29 March 2017. This request was objected to by Oracle.

[4] On 23 March 2017, Ms Clark filed submissions and three witness statements in support of her application for unfair dismissal remedy.

[5] On 24 March 2017, Oracle requested an extension to file its material which at that time, was due by noon, 27 March 2017.

[6] On 27 March 2017, I granted Oracle and extension to 5 April 2017 to file its material. On the same day, correspondence was also sent to Ms Clark requiring her to respond to Oracle’s s.399A application by close of business on 3 April 2017.

[7] On 31 March 2017, Ms Clark filed material in response to Oracle’s s.399A application. Ms Clark said she had been unwell which prevented her from competently completing her documents in the time directed by the Commission. Ms Clark also attached a medical certificate from Dr Helen McPherson which said “…because of this pain she was unable to complete the paperwork required for the Fair Work Commission by 20/3/17.” Ms Clark submitted that because the delay was short, Oracle has not suffered disadvantage or prejudice.

[8] On 5 April 2017, Oracle filed its material for the substantive hearing of the matter.

[9] Section 399A of the Act provides as follows:

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.

[10] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 1

[11] Based on the material filed firstly by Oracle and then in response by Ms Clark, I consider the s.399A application can be determined by me on the papers without having to hear further from the parties. Having regard to all the circumstances of the matter, I am not satisfied that Ms Clark has unreasonably failed to comply with a direction of the Commission, in light of the relatively minor delay in filing her material and the medical certificate supplied. I have also had regard to the fact Ms Clark has maintained contact with the Commission throughout and that ultimately Oracle was given an extension to submit its material that met and exceeded the delay of Ms Clark. I have also considered that there was and is still a sufficient period between the filing of the material and the hearing date for the parties’ case preparation to not be compromised.

[12] The application by Oracle under s.399A of the Act is dismissed and the matter will proceed to hearing on 8 May 2017. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

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