Delphine Howden v Kal'ang Indigenous Respite Care Centre Aboriginal Corporation

[2015] FWC 1460

[2015] FWC 1460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Delphine Howden
v
Kal’ang Indigenous Respite Care Centre Aboriginal Corporation
(U2014/8407)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Delphine Howden alleged that her dismissal by Kal’ang Indigenous Respite Care Centre Aboriginal Corporation was unfair.

[2] On 13 January 2015, directions were issued to Ms Howden to file material in support of her application by no later than noon on 2 February 2015. The directions advised the parties that they are required to comply with the directions.

[3] Ms Howden did not comply with these directions. On 2 February 2015, Ms Howden’s representative requested an extension of time to 5 February 2014 as he was having difficulty contacting Ms Howden. He advised that Ms Howden had been caring for her partner and has experienced some health issues herself during this period and that Ms Howden lives in a remote area, making telecommunications difficult.

[4] While that request was not responded to, Ms Howden did not file any material by 5 February 2015.

[5] On 6 February 2015, Kal’ang wrote to the Commission noting that it still had not received material. It put Ms Howden on notice that it did not accept the reliance on health issues unless there was supporting medical evidence and disputed that Ms Howden’s location made communication difficult.

[6] The matter was referred to a non compliance hearing on 13 February 2015. Ms Howden’s representative attended the non compliance hearing as did Kal’ang’s representative.

[7] At the hearing Kal’ang made an application to have the matter dismissed under s.399A of the Fair Work Act 2009.

[8] Kal’ang submitted that there had already been an extension of time granted to Ms Howden however I could not find any record of Ms Howden being given an extension of time to file her material.

[9] Ms Howden’s representative relied upon the difficulty he had contacting Ms Howden. However there was no explanation provided by Ms Howden as to why she did not respond to her representative’s repeated requests for her to contact them. Ms Howden did not contact her representative about the directions until 30 January 2015. Despite exchanging draft documents they were not served until 18 February 2015. It was submitted that Ms Howden does not have a full understanding of the process and the consequences for failure to comply despite being advised by her representative.

[10] It was submitted that Ms Howden had health issues and had caring responsibilities for her partner during January. Again no statement to that effect was made by Ms Howden.

[11] Ms Howden’s representative also relied on the change in personnel involved in representing Ms Howden and the fact that he was unwell during the period after 2 February 2015.

[12] Kal’ang submitted that Ms Howden had not provided a reasonable explanation for her non compliance. Her failure to contact her representative was a problem of her own creation. It also submitted that there is no evidence on which I could find that any illness of Ms Howden or her partner prevented her from complying with the directions. It also submitted her ignorance of the process was not a sufficient defence and in any event she had been represented by her union and it was its role to explain the system to her. Kal’ang submitted that there was no evidence of any representational error and, in any event even if there had been, that does not weigh in Ms Howden’s favour. Kal’ang submitted that Ms Howden’s evidence filed in this matter discloses that her case for an unfair dismissal remedy is weak.

Consideration

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

[14] 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

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

[16] 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.

[17] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Conclusion

[18] I am not persuaded to dismiss Ms Howden’s application.

[19] I am concerned that Ms Howden was unresponsive to her representative’s attempts to engage with her and that she failed to heed the warnings about the consequences of failing to comply. I am also concerned that there was no statement prepared by Ms Howden that explained why she did not respond to the attempts by her representative to contact her. Ms Howden has not provided any medical evidence to support her claim that either she or her partner were unwell.

[20] I find, given the repeated attempts by her representative to ensure she complied with the directions, that her non compliance with the original directions was unreasonable. However Ms Howden only failed to comply with directions of the Commission on one occasion. This is not a case where there has been repeated non compliance with the Commission’s directions.

[21] I accept that there have been inordinate delays in this matter but not all of the delays can be sheeted home to Ms Howden’s failure to comply.

[22] After the conciliation the parties continued to see if this matter could be resolved. This resulted in the matter not being referred to arbitration for some months.

[23] The matter was further delayed because the Commission sought the employer’s response form prior to listing it for arbitration. That response was not provided until 17 December 2014.

[24] All these delays were unacceptable. Ms Howden’s failure to comply has now further delayed the hearing of the matter as her late filing has meant that there was insufficient time for Kal’ang to respond.

[25] The decision to dismiss a matter is discretionary. I am not satisfied that Ms Howden has exhibited an unwillingness to have her matter ready for hearing. She has now filed her material.

[26] As such I am not prepared to exercise my discretion to dismiss her application.

[27]
Directions will be issued for the future conduct of this matter.

DEPUTY PRESIDENT

<Price code A, PR561576>

 1 S.399A of the Fair Work Act 2009

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

 3   PR956665

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