Erin Ociepa v Agile Group (APAC) Pty Ltd

[2020] FWC 6989

[2020] FWC 6989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erin Ociepa
v
Agile Group (APAC) Pty Ltd
(U2020/14201)

COMMISSIONER HAMPTON ADELAIDE, 31 DECEMBER 2020

Application for an unfair dismissal remedy – applicant failed to engage in the process and did not participate in directions conference – S.399A application made to dismiss – no contrary submissions or contact from applicant – satisfied conditions met – discretion exercised – unfair dismissal claim dismissed – order issued.

[1] On 28 October 2020, Ms Erin Ociepa (the Applicant), made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The application contended that Ms Ociepa’s employment had been terminated by Agile Group (APAC) Pty Ltd (Respondent) on 8 October 2020.

[2] By way of background I observe that the matter was listed for two conciliation sessions on 23 November, and subsequently, 8 December 2020, which ultimately did not proceed due to the non-participation of Ms Ociepa. The matter was subsequently referred to this arm of the Commission for hearing and determination.

[3] A pre-arbitration directions conference was listed on 18 December 2020. Both parties were advised of the directions conference using contact details supplied to the Commission by each party. In the case of Ms Ociepa, this was via an email address that had been supplied to the Commission in context of exchanges about the rescheduling of a conciliation session. My Chambers had also contacted Ms Ociepa via her mobile phone and left various messages advising of the directions conference and providing contact details for further information.

[4] Ms Ociepa did not participate in the directions conference and did not contact the Commission to advise of her non-attendance or otherwise confirm her intentions. The Respondent did participate in the pre-arbitration directions conference.    1

[5] In advance of the directions conference, the Respondent’s legal representative wrote to Ms Ociepa foreshadowing that should she fail to participate in the directions conference an application would be made to dismiss her application under s.399A(1)(a) of the FW Act. The relevant parts of the correspondence are set out below:

“… …

2. Conciliation conferences were listed in this matter for 23 November 2020 and 8 December 2020.

3. As you did not attend those conciliations, they did not proceed. To our knowledge you did not make any requests for adjournments with the Fair Work Commission or notify our firm that you would not be attending.

4. Our client has incurred legal costs in preparing for the conciliation conferences.

5. Because you chose not to participate in the conciliations, it appears to our client that you are not seeking to prosecute your unfair dismissal application.

6. Accordingly, you are on notice that if you do not participate in the Directions Conference listed for 18 December 2020, our client will ask the Commission to dismiss your unfair dismissal application pursuant to s399A of the Fair Work Act 2009 (Cth).”

[6] During the course of the directions conference, the Respondent made an oral s.399A application to dismiss the unfair dismissal claim. The Commission has waived compliance with the Fair Work Commission Rules 2013 to the extent necessary and has treated the oral application as a formal application under the FW Act. In support of its s.399A application, the Respondent relied upon Ms Ociepa’s non-attendance at the directions conference in the context set out in the earlier correspondence. In so doing, the Respondent did not, properly in my view, rely upon the non-participation in the conciliation sessions as a trigger for its application. Rather, this formed part of the context in which to assess the reasonableness of the actions of the Applicant and the potential exercise of discretion.

[7] At the conclusion of the directions conference, directions were issued to the parties. The relevant parts are set out below:

“1. On or before Tuesday 29 December 2020, the Applicant is to file with the Commission, and provide to the Respondent, submissions providing reasons why the Commission should not dismiss her unfair dismissal application, and any evidence or other documentary material to support the reasons. This should be provided in the form of a sworn statement.

2. Subject to 3. below, on or before Friday 8 January 2021, the Respondent is to file with the Commission, and provide to the Applicant, any response to the submissions and evidence filed by the Applicant.

3. Should the Applicant not file any materials as required by direction 1. above, the Respondent is not required to file any further submissions and the matter will be determined on the basis of the materials already before the Commission.

4. If there are disputed facts relevant to the s.399A application or if a party seeks a hearing on that application, the matter will be listed for telephone hearing at short notice.

5. Liberty to apply is granted.”

[8] Contact details for the Commission were also again provided to assist Ms Ociepa. Further, access to the recording of the directions conference was also made available to the Applicant upon request.

[9] Ms Ociepa did not contact the Commission or file any material by the date specified in the directions; and has not done so up until the point that this decision is being issued.

[10] Section 399A of the FW 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.

[11] A recent Full Bench of the Commission 2 summarised the operation of this provision in the following terms:

“[27] A Full Bench of the Commission in Granas v Berkley Challenge set out the approach to dealing with s.399A as follows:

“In Mihajlovic v Lifeline Macarthur, a Full Bench of the Commission pointed out the following about the use of the word ‘may’ in a statute:

“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’

Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”.

[28] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) in respect of now s.399A said:

“161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

•  failed to attend an FWC conference or hearing relating to the application

•  failed to comply with an FWC direction or order relating to the application, or

•  failed to discontinue the application after a settlement agreement has been concluded.

162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

163. 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. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

•  an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or

•  an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.”

165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.

167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.”

[29] Since the Explanatory Memorandum refers to now s.399A ‘enabling’ the Commission to dismiss a unfair dismissal remedy application, we do not consider s.399A is within the category of statutory provisions where the word ‘may’ is to be read as ‘must’.

[30] The discretion to dismiss an application under s.399A is only enlivened if the Commission is satisfied that the Applicant has unreasonably failed to do one of the things referred to in s.399A(1)(a), (b) or (c). Accordingly, we consider s.399A(1)(c) provides the Commission with a discretion to dismiss a unfair dismissal remedy application provided the Commission is “satisfied that the Applicant has unreasonably… failed to discontinue the application after a settlement agreement has been concluded.”

[31] Section 399A(2) of the FW Act provides that the Commission may exercise its power under s.399A(1) on application by the employer. As the power in s.399A is only exercisable on application by an employer it is the employer who bears the burden of persuading the Commission that the requirements of s.399A(1)(a), (b) or (c) have been met and that the discretion should be exercised in favour of the unfair dismissal remedy application being dismissed.

[32] While the Full Bench in Granas v Berkley Challenge was dealing with a decision to dismiss an application pursuant to s.399A(1)(c), the observations are no less relevant here. We respectfully agree with the observations and adopt them here.”

(Citations omitted)

[12] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the Act. 3 I am satisfied that proper notice of the s.399A application has been given to Ms Ociepa and that a reasonable opportunity to respond to that application has also been afforded. As Ms Ociepa did not file any material in opposition to the application to dismiss, I will determine that application on the papers.

[13] I am satisfied that Ms Ociepa did not attend a conference, being the directions conference conducted by the Commission in relation to her application. I am also satisfied that it was unreasonable for her to fail to do so having regard to all of the circumstances. This satisfies s.399A(1)(a) of the FW Act. I am also satisfied that I should exercise my discretion to dismiss the unfair dismissal matter. In that regard, I observe that Ms Ociepa has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter.

[14] As a result, after considering all of the materials before the Commission and the circumstances of this matter, it is appropriate that Ms Ociepa’s application for an unfair dismissal remedy be dismissed. An order 4 giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1 Mr Colquhoun of WestmoreJacobs Workplace Law appeared, with permission granted under s.596 of the FW Act, for the Respondent.

 2   Anita Shankar v Fairmont Resort & Spa[2020] FWCFB 7044.

 3 There is an exception provided in relation to unfair dismissal matters in s.397 of the FW Act; however, there are no facts in dispute relevant to the present application.

 4   PR725767