Claire Norton v St John Ambulance WA

[2021] FWC 6089

[2021] FWC 6089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Claire Norton
v
St John Ambulance WA
(U2021/5860)

COMMISSIONER WILLIAMS PERTH, 8 OCTOBER 2021

Application for an unfair dismissal remedy – s.399A – Failure to comply

[1] This matter involves an application made by Ms Claire Norton (Ms Norton or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is St John Ambulance WA (the Respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

[3] On 17 August 2021, the Respondent made an application seeking to have the matter dismissed pursuant to section 399A(1)(b) of the Act, or in the alternative, section 587(b) or (c).

Legislation

[4] Section 399A(1)(a) and (b) of the Act provides that the Fair Work Commission (the Commission) may, on application by an employer, dismiss an application for an order under Division 4 of the Act if the Commission is satisfied that the Applicant has unreasonably failed to attend a hearing or comply with a direction or order of the Commission relating to the application.

[5] This application is for an unfair dismissal remedy under Division 4 of the Act and accordingly, may be the subject of a dismissal order under section 399A of the Act.

[6] The Respondent is the employer and has made an application under section 399A of the Act.

[7] Section 399A of the Act has been enlivened.

[8] The issue for determination is whether the Applicant has unreasonably failed to attend a hearing or comply with a direction or order of the Commission relating to the matter.

Background

[9] On 29 July 2021, the Commission issued directions in relation to the hearing of a jurisdictional objection.

[10] Direction 3 required the Applicant to file and serve a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents to be relied on in support of the Applicant’s case by 4:00pm, 12 August 2021.

[11] The Applicant failed to comply with this direction.

[12] On 13 August 2021, the Commission placed the Applicant on notice of the failure to comply with direction 3 and provided an extension of time for compliance. The extended filing date was 10:00am, 17 August 2021.

[13] The Applicant was placed on notice in this letter from the Commission that a failure to file and serve the relevant materials may result in the application being dismissed.

[14] The Applicant did not file and serve any of the required materials in accordance with the amended direction.

[15] The Applicant has repeatedly failed to comply with directions of the Commission.

[16] Between 26 July 2021 and 17 August 2021, the Applicant sent email correspondence to the Respondent’s representatives or the Commission on eight occasions.

[17] The Applicant was clearly aware of the proceedings and was receiving communications from both the Respondent and the Commission.

[18] Notably, the Applicant’s emails do not seek an extension of time for compliance with the directions, contain any substance in respect of the merits of the matter which could be taken as an attempt to comply with the directions, nor give advance notice of an intention not to comply with the directions.

[19] On 5 August 2021, the Respondent by email to the Commission (copied to the Applicant) provided its consent to the Applicant seeking an extension of time subject to the provision of evidence of the need for that extension

[20] On 16 August 2021, the Commission by letter to the Applicant advised that if the Applicant required an adjournment, a request could be made with supporting evidence as to the need for an adjournment.

[21] To date, the Applicant has not sought either an extension of time or adjournment, much less provided any evidence of the need for an extension or adjournment despite being twice invited to do so.

[22] The Applicant’s email of 17 August 2021 was sent in reply to correspondence from the Commission, evidencing the fact that the Applicant had received the Commission’s correspondence of 16 August 2021.

[23] The Applicant’s email of 17 August 2021is indicative of the Applicant’s conduct in this matter and of an intention not to comply with directions, stating:

“I terminating this email address and marking all your emails as junk. FUCK OFF” (sic)

[24] The Applicant did not attend the non-compliance hearing on 6 October 2021.

Consideration

[25] The facts of this matter are that Ms Norton has repeatedly chosen not to comply with the Commission's directions and she has failed to attend a hearing conducted by the Commission in relation to her application.

[26] Instead, Ms Norton has sent to the Commission and to the Respondent’s representatives a series of emails every one of which was abusive, threatening, vulgar, and laden with obscenities. Ms Norton's unpleasant behaviour was entirely unnecessary and entirely unreasonable.

[27] As mentioned in the Respondent’s section 399A application, the Commission's records show that in 2017 and 2020 Ms Norton also made unfair dismissal remedy applications against two other employers. Each of these applications was settled.

[28] This context suggests that the Commission's emphasis on settling unfair dismissal remedy applications, more commonly than not by some payment being made to the employee Applicant, led Ms Norton to expect the same outcome in this matter.

[29] Ms Norton is possibly dissatisfied that this has not occurred on this occasion.

[30] Ms Norton’s case reinforces the important work to be done by section 399A of the Act.

[31] I am satisfied that the Applicant, Ms Claire Norton, has unreasonably failed to attend a hearing held by the commission in relation to her application and has unreasonably and repeatedly failed to comply with directions of the Commission relating to her application.

[32] Consequently, Ms Norton's application will now be dismissed pursuant to section 399A(1) (a) and (b) of the Act. An Order [PR734687] to that effect will be issued in conjunction with this decision.

Appearances:

Applicant, no appearance.

B Robinson of Kingston Reid for the Respondent.

Hearing details:

2021.
Perth:
October 6.

Printed by authority of the Commonwealth Government Printer

<PR734686>