Elizabeth Grozdanovski v Rex Gorell Family Group Pty Ltd

[2017] FWC 3014

[2017] FWC 3014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Grozdanovski

v

Rex Gorell Family Group Pty Ltd

(U2017/2407)

Deputy President Clancy MELBOURNE, 1 JUNE 2017

Application for an unfair dismissal remedy.

1. On 6 March 2017, Ms Elizabeth Grozdanovski made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).  Ms Grozdanovski said her dismissal took effect on 22 February 2017.

1. The matter was listed for conciliation on 10 April 2017, however it did not resolve.  Consequently, directions were issued and Ms Grozdanovski was directed to file an outline of submissions, witness statements and other documentary material by no later than noon on 1 May 2017.  The directions were subsequently amended by the Fair Work Commission and Ms Grozdanovski was directed to file her material by noon on 8 May 2017 and the matter was listed for hearing.

1. As no material had been received from Ms Grozdanovski, on 8 May and 10 May 2017 the Commission attempted to telephone her, however this was unsuccessful and voicemail messages were left seeking a return call.

1. The matter was listed for a non compliance hearing before Commissioner Bissett on 12 May 2017.  In response to Commissioner Bissett asking why no material had been filed and why there had been no response to the Commission’s phone calls, Ms Grozdanovski advised she had been in hospital for two weeks and that she would be meeting with her representatives that day regarding her submissions.  Ms Grozdanovski advised she anticipated filing her material by no later than close of business on 15 May 2017.  Commissioner Bissett determined to extend the filing date for Ms Grozdanovski’s material to 4.00pm on 15 May 2017.  Rex Gorell Family Group Pty Ltd (Rex Gorell) was also granted an extension to file its material to 4.00pm on 5 June 2017.

1. Ms Grozdanovski did not file any material by 4.00pm on 15 May 2017.  Consequently, on 16 May 2017, two voicemails were left seeking a return call from Ms Grozdanovski regarding her outstanding material.

1. On 19 May 2017, following an email from the Commission requesting immediate advice as to the status of Ms Grozdanovski’s submissions and her intentions with her matter, Ms Grozdanovski telephoned the Commission.  Ms Grozdanovski said she had spoken to her solicitor and would like to request a second conciliation.  She said she was unable to file her material due to family reasons and difficulties she had contacting her solicitor.  Following the phone call, Ms Grozdanovski emailed the Commission and requested a further conciliation.

1. As no material had been received, I determined to list the matter for a telephone mention on 24 May 2017.  At the mention, I confirmed with Ms Grozdanovski her obligation to file and serve her material.  Ms Grozdanovski said she had material prepared and had not filed it because she thought her solicitor would need to do so on her behalf.  Ms Grozdanovski confirmed she had not officially appointed a solicitor to represent her.  The Commission has received no notification from a solicitor advising s/he has commenced acting for Ms Grozdanovski.  Ms Grozdanovski reiterated her request for a second conciliation.

1. During the course of the telephone mention, Ms Grozdanovski’s husband took over from her for a short period.   I explained to him that Ms Grozdanovski had been directed to file material, due on 8 May 2017 and then on 15 May 2017.  I explained that Ms Grozdanovski was able to request a second conciliation, but that her obligation to file material does not lapse.

1. Upon Ms Grozdanovski re-convening, she said she would email her paperwork to whomever it needed to be emailed to.  I confirmed with Ms Grozdanovski that she must file her material, especially in light of the extension granted on 12 May 2017 to file material by 15 May 2017.  With the consent of the parties, I proceeded to conduct a Member Assisted Conciliation, however the matter did not resolve.

1. Following the telephone mention, Rex Gorell filed an objection to the application and sought the dismissal of Ms Grozdanovski’s application under s.399A of the Act.  Rex Gorell based their objection on Ms Grozdanovski’s failure to comply with directions.

1. On 24 May 2017, Ms Grozdanovski was sent correspondence informing her of Rex Gorell’s s.399A application.  Ms Grozdanovski was directed to file submissions and other documentary material in respect of Rex Gorell’s application by close of business on Wednesday 31 May 2017.  Ms Grozdanovski was advised that if she failed to comply with this direction, her application would be dismissed.

1. Ms Grozdanovski did not file any material with the Commission, neither in response to the s.399A application or in relation to her substantive application.

1. Section 399A of the Act provides as follows:

   399A    Dismissing applications

   (1)       The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

   (a)        failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

   (b)       failed to comply with a direction or order of the FWC relating to the application; or

   (c)       failed to discontinue the application after a settlement agreement has been concluded.

   ....

   (2)       The FWC may exercise its power under subsection (1) on application by the employer.

   (3)       This section does not limit when the FWC may dismiss an application.

1. I am satisfied that Rex Gorell’s objection filed on 24 May 2017 is an application to have the matter dismissed for Ms Grozdanovski’s failure to comply with a direction.

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. As Ms Grozdanovski did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary.  Ms Grozdanovski has failed to file any material in response to directions to do so regarding her substantive application.  Ms Grozdanovski was given notice on 13 April 2017, via email, of the requirement to file material by noon on 8 May 2017.  Subsequently, she was directed by Commissioner Bissett via telephone at the non compliance hearing on 12 May 2017 to file material by 4.00pm on 15 May 2017.  The direction of Commissioner Bissett was confirmed in writing to Ms Grozdanovski the same day.

1. Ms Grozdanovski has been given numerous opportunities to file her material and despite advising she has material to file, she has not done so.  She has also ignored the direction to file material in response to the s.399A application.  It is Ms Grozdanovski who has made the application for remedy for unfair dismissal and she must bear responsibility for attending to the tasks required of her in the Commission’s management of her claim.  At no stage has Ms Grozdanovski submitted material to the Commission that would suggest her repeated failures to comply with directions of the Commission have a reasonable basis.

1. In all the circumstances, I am satisfied Ms Grozdanovski has unreasonably failed to comply with directions of the Commission and I will therefore exercise my discretion under s.399A(1)(b) of the Act and dismiss Ms Grozdanovski’s application.  An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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