Elizabeth Baron v STA Travel Pty Ltd T/A STA Travel
[2016] FWC 6001
•29 AUGUST 2016
| [2016] FWC 6001 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elizabeth Baron
v
STA Travel Pty Ltd T/A STA Travel
(U2016/2289)
COMMISSIONER WILSON | MELBOURNE, 29 AUGUST 2016 |
Application for relief from unfair dismissal.
[1] On 16 May 2016, Ms Elizabeth Baron made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Baron’s employment had been terminated by STA Travel on 26 April 2016.
[2] The matter was the subject of conciliation on 14 June 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for jurisdiction (minimum employment period) hearing on 8 July 2016.
[3] Ms Baron was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 24 June 2016.
[4] On 24 June 2016, STA Travel withdrew their jurisdiction objection. New directions were issued and the matter was listed for arbitration hearing on 25 and 26 August 2016.
[5] Ms Baron was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 18 July 2016.
[6] On 15 July 2016, Ms Baron advised she was out of the country and requested an extension to file her submissions. A further period of time was granted and Ms Baron was required to file her material by 25 July 2016.
[7] Ms Baron did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 29 July 2016.
[8] Ms Baron did not attend the non compliance hearing.
[9] Mr Martin Alden attended the non compliance hearing on behalf of STA Travel. He advised the matter had settled in principle and that a Deed of Release had been forwarded to Ms Baron for execution.
[10] Deputy President Gooley granted an extension to Ms Baron to file documents she wished to rely on by 8 August 2016.
[11] Deputy President Gooley gave liberty to STA Travel to make an application under section 399A of the Act if Ms Baron did not file documents by 8 August 2016.
[12] On 9 August 2016, STA Travel filed an objection to the application and sought the dismissal of Ms Baron’s application. STA Travel based their objection on grounds which include:
(a) failure to comply with directions; and
(b) failure to attend the non compliance hearing on 29 July 2016.
[13] On 9 August 2016, Ms Baron was sent correspondence informing her of STA Travel’s section 399A application. Ms Baron was directed to file submissions and other documentary material in respect of STA Travel’s application by close of business, on 17 August 2016. Ms Baron was advised that if she failed to comply with this direction, her application would be dismissed.
[14] On 14 August 2016, Ms Baron emailed the Commission as follows:
I am not aware of any hearing held on the 29th July, the last email I had referred to a hearing scheduled for the 25th and 26th August. I have not received any other correspondence about other hearings.
Throughout this process I have been trying to negotiate with STA Travel through Martin Alden in order to come to an agreement outside of the FWC, as suggested on the website. On 21st July Mr. Alden sent me an offer of 3 week's pay less tax plus a flight home to the UK on the condition that I discontinue my claim and sign a deed of release. He gave me until the 25th July to accept, and I did so within the time period given. This is the reason that I did not submit paperwork to the FWC by the 25th, I was told that for the offer to be valid I could not continue with my claim.
I was sent the deed of release on the 25th July and told I could seek legal advice if I wished and to sign and return it at my earliest convenience. I was not given a deadline and as I am still out of the country with limited internet access I have had delays in getting advice on this. As STA cancelled my visa I had no choice but to leave Australia and obviously had no job to return to in the UK, so I am studying Spanish in Central America.
On Monday 8th August I received another email from Mr. Alden saying that the deed of release was no longer open for me to sign and a copy of the letter that they had filed to the FWC, saying that I had not submitted my paperwork.
As my reason for not submitting the paperwork was STA making me an offer which was conditional upon me discontinuing my claim, I think it is completely unreasonable and unfair that they have now retracted that offer on the grounds that I did not submit paperwork for the claim. If I had submitted my paperwork on the 25th July they surely would have seen it as me continuing with my claim which would have violated the agreement made by accepting their offer.
I am afraid that I do not currently have the capacity to attach emails but I will forward you the correspondence separately.
If STA Travel were to reopen their offer then I would be happy to sign and resolve this process.
Conclusion
[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 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.
[20] I am not satisfied that Ms Baron has unreasonably failed to comply with a direction of the Commission. Even if I had found her non-compliance was unreasonable I would not in my discretion have dismissed this matter.
[21] In these circumstances, I will dismiss STA Travel’s section 399A application. An order giving effect to this decision will be issued today.
[22] The material before the Commission suggests that the matter has settled. Indeed, the legal representative for the Respondent, Mr Martin Alden of Cornwall Stodart Lawyers, advised that the matter had settled in principle. If that is the case, and it is found there is a contact between the parties for settlement, then the matter may be incapable of relisting by the Commission. In Curtis v Darwin City Council[2012] FWAFB 8021 the Full Bench referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2001] FCA 975 which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application, then the application has no reasonable prospects of success and may be dismissed.
[23] If, contractually, the parties have reached agreement, then they should proceed to give effect to the terms of settlement, and as soon as possible.
[24] It would assist the Commission, if each party advised the Commission within seven days of this decision whether they consider there is a settlement, and whether its terms have been implemented.
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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