Dalia Mankarious v Aquanas Foods

[2016] FWC 2926

[2016] FWC 2926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dalia Mankarious
v
Aquanas Foods
(U2016/3799)

COMMISSIONER WILSON MELBOURNE, 12 MAY 2016

Application for relief from unfair dismissal.

[1] On 13 January 2016, Ms Dalia Mankarious made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Mankarious says her employment had been terminated by Aquanas Foods and took effect on 9 January 2016.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Mankarious was directed to file an outline of submissions, witness statements and other documentary material she wished to rely in relation to the substantive matter by noon, on 26 April 2016 and 17 May 2016 for the material in opposition to Aquanas’ jurisdictional objection.

[4] Ms Mankarious did not comply with the direction to file by 26 April 2016. The matter was listed for a non compliance hearing before Commissioner Bissett on 29 April 2016.

[5] Ms Mankarious did not participate in the non compliance hearing. Aquanas made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Mankarious had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Aquanas’ oral application.

[6] Ms Mankarious was sent correspondence informing her of Aquanas’ section 399A application. Ms Mankarious was directed to file submissions and other documentary material in respect of Aquanas’ application by close of business, on 6 May 2016. Ms Mankarious was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 29 April 2019, Ms Mankarious requested an extension to file her submissions. In her correspondence, Ms Mankarious also advised that she did not “know that there was a due date” and that her representative ceased to act following conciliation and was therefore unaware of documents supplied to the Commission and sent from the Commission.
[8] Further to the request of Ms Mankarious, the Commission permitted an extension of time to both parties to file their initial material by 9 May 2016.

[9] On 5 May 2016, Ms Mankarious wrote to the Commission and provided reasons why she thinks her dismissal was unfair in response to the 399A application.

[10] In response to that correspondence, Aquanas submits that it does not consider that Ms Mankarious’ explanation complied with the Commissioner’s direction and requested that it be dismissed in accordance with the direction given on 29 April 2016.

[11] On 8 May 2016, Ms Mankarious filed the material she wished to rely on to support her claim.

Conclusion

[12] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[13] 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.” 2

[14] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[15] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[16] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[17] I am not satisfied that Ms Mankarious has unreasonably failed to comply with a direction of the Commission. She has filed the material she wishes to rely on in accordance with the amended directions (issued on 5 May 2016). She has not indicated an unwillingness to have her matter ready for hearing. In these circumstances, I will dismiss Aquanas’ section 399A application. The matter remains listed for hearing on 30 and 31 May 2016.

COMMISSIONER

 1 S.399A of the Fair Work Act 2009

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

 3   PR 956665

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