Danielle Rushford v Heritage Golf and Country Club T/A Match Play

[2016] FWC 3545

[2016] FWC 3545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danielle Rushford
v
Heritage Golf and Country Club T/A Match Play
(U2015/16766)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal.

[1] On 11 December 2015, Ms Danielle Rushford made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Ms Rushford alleges her employment was terminated by Heritage Golf and Country Club T/A Match Play on 22 November 2016.

[2] The matter was listed for conciliation, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Rushford was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 15 March 2016.

[4] Ms Rushford did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 18 March 2016.

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

[6] On the same day, Ms Rushford was sent correspondence informing her of Match Play’s section 399A application. Ms Rushford was directed to file submissions and other documentary material in respect of Match Play’s application by close of business, on 29 March 2016. Ms Rushford was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Rushford did not file any material with the Commission by the required date.

[8] On 11 April 2016, the Commission received a telephone call from Ms Rushford’s mother, Ms Caroline Rushford, who indicated that she was meant to be kept informed of the progress of the matter as Ms Rushford had been very busy and may have missed some correspondence. Ms Caroline Rushford advised that she had informed the Commission of this in February 2016.

[9] On 5 May 2016, my chambers emailed Ms Rushford and requested that she provide a response to the Commission’s correspondence from 18 March 2016. She was asked to provide this by noon the following day.

[10] Ms Rushford and her mother responded on 6 May 2016 and asked that the matter not be dismissed as it appeared that the Commission’s correspondence was not going to Ms Caroline Rushford as previously requested.

[11] The matter was referred to Commissioner Ryan for further conciliation.

[12] Match Play’s representative set out, in further correspondence dated 26 May 2016, reasons as to why Ms Rushford’s application should be dismissed. Match Play asserts that the reason provided by Ms Rushford, regarding her failure to comply, does not explain why she has still not complied with the Commission’s directions. It says that Ms Rushford has had ample opportunity to progress her claim. Further, Match Play presses that the application be dismissed as Ms Rushford has disregarded the Commission’s processes and the need to ensure that each party have a fair and reasonable go all round. Lastly, it submits that Ms Rushford’s conduct has caused considerable legal costs to be incurred.

[13] On 31 May 2016, the matter was referred to me where I gave a further opportunity to Ms Rushford to respond to Match Play’s correspondence and explain why her matter should not be dismissed. Ms Rushford and her mother responded on 7 June 2016.

[14] Ms Rushford’s response goes to the unfairness of her dismissal and requests that the application not be dismissed because “the employer is conveniently not available at this time”.

[15] 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

[16] 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

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

[18] 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.

[19] While not an exhaustive list that may be considered, I have had regard to the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[20] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As there are no issues of fact in dispute, I will determine this issue on the papers.

[21] I consider Ms Rushford’s failure to follow the Commission’s processes to be unreasonable. I agree with Match Play’s submission that she has had ample opportunity to prepare her material as directed in February 2016.

[22] However, the decision to dismiss an application is discretionary. In this matter there was some confusion about who was representing Ms Rushford. I note however that advice from a parent that they represent a party is insufficient and if a party wishes to advise the Commission of an alternative representative they must do so themselves or alternatively by filing a Form F53.

[23] In those circumstances, I do not propose to dismiss Ms Rushford’s application at this time. However, I note that Ms Rushford has still not filed witness statements nor an outline of argument. In fact, she has taken no steps to progress her claim. I note her advice that she has been busy with her new job however, it is not unusual for parties to have other obligations. It is her responsibility to progress her claim.

[24] Therefore, I will direct Ms Rushford to file, and serve on Match Play, her evidence and outline of argument by noon on 20 June 2016. If she fails to comply with this direction or seek an extension of time on substantive grounds, before the compliance date, her application will be dismissed without further notice to her.

DEPUTY PRESIDENT

 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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