Denies Anastasiou v BIC Services

[2015] FWC 6199

[2015] FWC 6199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denies Anastasiou
v
BIC Services
(U2015/8488)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 14 June 2015, Ms Denies Anastasiou made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Anastasiou’s employment had been terminated by BIC Services on 25 May 2015.

[2] The matter was the subject of conciliation on 14 July 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Anastasiou was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 3 August 2015.

[4] Ms Anastasiou did not comply with this direction and the matter was listed for a non-compliance hearing before Commissioner Wilson on 7 August 2015.

[5] Commissioner Wilson granted an extension for Ms Anastasiou to file her submissions and material by 24 August 2015.

[6] On 26 August 2015, Ms Anastasiou requested a further extension to file her documents.

[7] On 27 August 2015, BIC Services objected to the granting of an extension to Ms Anastasiou to file her material.

[8] On 27 August 2015, BIC Services filed an objection to the application and sought the dismissal of Ms Anastasiou’s application pursuant to s.399A of the Act. BIC Services based their objection on grounds which include Ms Anastasiou’s failure to comply with directions

[9] On 1 September 2015, Ms Anastasiou was sent correspondence informing her of BIC Services’ s.399A application. Ms Anastasiou was directed to file submissions and other documentary material in respect of BIC Services’ application by close of business, on 11 September 2015. Ms Anastasiou was advised that if she failed to comply with this direction, her application would be dismissed.

[10] On 11 September 2015, Ms Anastasiou filed submissions and a witness statement.

[11] Her response to the s.399A application filed by BIC Services was that her English reading and writing skills were poor and she had to rely on her daughter to assist her and her daughter has children including a premature baby who was unwell.

[12] This advice was provided to BIC Services which advised that it wished to press its s.399A application. It stated that Ms Anastasiou had not filed any witness statements other than her own and that evidence did not support her claim that her dismissal was unfair.

[13] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application if an applicant has unreasonably failed to comply 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 approach to dismissal of applications 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.

[18] Ms Anastasiou is unrepresented in these proceedings. She has advised the Commission that she will require an interpreter. Her advice that her English reading and writing skills are poor was not contested.

[19] I do consider Ms Anastasiou’s failure to comply with the directions was unreasonable in all the circumstances. I accept that she required assistance to understand her obligations. However Ms Anastasiou had an obligation to advise the Commission of her difficulties before the time for compliance had passed. Further she should have participated in the non-compliance telephone hearing to explain her difficulties. Further despite notifying the Commission that she would have her material filed by 28 August 2015 she did not file it until 11 September 2015.

[20] The decision to dismiss is a discretionary decision. I am not satisfied that I should exercise my discretion to dismiss her application. Ms Anastasiou has now filed material in support of her claim. I do not accept the submission that her evidence does not support her claim that her dismissal was unfair. There are clearly factual differences between the parties that will need to be tested.

[21] There is nothing in the s.399A application that would support a finding that it would be prejudiced by the delay. In the event that the Commission decides that the dismissal was unfair the Commission can have regard to Ms Anastasiou’s delay in crafting any remedy. Further if the delay has caused BIC Services to incur costs it has other remedies.

[22] If I dismissed Ms Anastasiou’s application she will be denied her opportunity to have her claim that she was dismissed unfairly heard and determined. While I accept that BIC Services may have been inconvenienced by the delay I consider that to deny Ms Anastasiou the opportunity to put her case would be unjust. In those circumstances I refuse to exercise my discretion to dismiss Ms Anastasiou’s application and therefore the s.399A application is dismissed.

[23] Directions will be issued to BIC Services to file its material. The hearing dates will be vacated and new dates set.

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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