Felicity Smith v Ironbark Demolition Pty Ltd

[2022] FWC 3300

[2022] FWC 3300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Felicity Smith
v

Ironbark Demolition Pty Ltd

(U2022/9842)

DEPUTY PRESIDENT DOBSON BRISBANE, 14 DECEMBER 2022

Application for an unfair dismissal remedy – Application under s.399A(1)(b) for the Commission to dismiss application for failure to comply with a direction of the FWC relating to the application – Application to dismiss refused – Not an appropriate case to exercise discretion to dismiss – Interlocutory Decision - Jurisdictional objections to be determined with merits

OVERVIEW

1. This decision concerns an application by Ms Felicity Smith (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Ironbark Demolition Pty Ltd (the Respondent). The application was filed in the Commission on 6 October 2022. The matter was listed for conciliation, before a Fair Work Commission Conciliator, on 31 October 2022, however the matter did not settle at conciliation.

1. The matter was listed for Mention on 21 November 2022 and Directions (the Directions) were issued for filing of material in relation to the merits of the Application. The Directions of 14 November 2022 required that the Applicant file her material by 4:00pm on 28 November 2022 and the Respondent file its material in response by 4:00pm Monday 12 December 2022. The Directions also stated under a heading “Non-Compliance with Directions” that the Commission would not accept material that is filed after the expiry of a time specified in the Directions unless an extension has been sought and granted by the Commission prior to the expiry of the specified time. The Directions further stated that requests for an extension of time must be made to the Commission in writing and specify the grounds upon which an extension is sought and that relevant documents such as medical certificates should also be provided.

1. On 18 November 2022, the preliminary conference was vacated and the matter was relisted for conference, including conciliation before Commissioner Riordan. In an email to the parties, it was advised that I maintained carriage of the matter and that the Directions remained in place and that material should still be filed, in accordance with the Directions to my Chambers and served on the other party.

1. On 24 November 2022, the parties were advised that due to emergent circumstances, that the conference including conciliation would now be before Deputy President Lake. Deputy President Lake held a conciliation with the parties on 28 November 2022, however the matter did not resolve.

NON-COMPLIANCE WITH DIRECTIONS

1. The Applicant did not comply with the Directions and did not file her material by 4:00pm on 28 November 2022 as required. The Applicant also did not seek an extension of time as required by the Directions. On 29 November 2022, at my request, my Associate sent the following correspondence to the Applicant, with a copy to the Respondent:

“Dear Ms Smith,

I write in relation to the above matter.

The Chambers of Deputy President Lake have confirmed that the matter did not resolve at the Conciliation.

Directions were issued on 14 November 2022. Correspondence from the Chambers of Deputy President Dobson on 18 and 24 November 2022 highlighted that regardless of the changes to the conference listings, that the Directions were still in place.

Paragraph [4] of the Directions required you to file your material by no later than 4:00pm on 28 November 2022. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the Directions by no later than 4:00pm on Friday 2 December 2022.

In the absence of any material filed by you, the matter may be determined without further reference to you. Alternatively, should the Respondent file according to s.399A of the Act, the Deputy President will be required to consider whether the matter be dismissed

1. Later that day, the Respondent filed a Form F4 – Objection to unfair dismissal Application. The Respondent made an application to dismiss the Unfair Dismissal application pursuant to s.388 and s.399a of the Act. The Respondent also made application to have the Directions amended in consideration of the availability of the contact person at the Respondent and the Respondent’s Representatives availability.

1. Later that same day, at my request, my Associate sent the following email to the Applicant, copying in the Respondent and attaching the Form F4 application as filed by the Respondent.

“Dear Parties,

I write in relation to the subject matter and refer to the Respondent’s Applicant.

Application to Dismiss

Ms Smith – The Deputy President directs you to make submissions as to why your application for Unfair Dismissal should not be dismissed in light of the Respondent’s Application (attached) pursuant to s.399a and s.388 by no later than 4:00pm, Monday 5 December 2022.

Directions

The Deputy President has considered the Respondent’s request for an extension to the Directions Timeframes and is not minded to extend them for the full 3 month period, however will grant an extension.

The Directions will be amended and issued shortly in consideration of the Respondent’s and Respondent’s Representatives availability.”

1. I issued amended Directions on 30 November 2022 requiring the Applicant file her material in relation to the merits of her application and to material in support of her failure to comply with the Directions by no later than 4:00pm on Monday 12 December 2022.

1. On 5 December 2022, the Applicant’s Representative filed submissions in reply to the Respondent’s Form F4 application.

1. In making an objection pursuant to s.388 of the Act, the Respondent submits that they are a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code. This objection will not be dealt with in the current decision and will instead be addressed in conjunction with the Merits of the Unfair Dismissal application.

1. The Applicant’s Representative submitted that their ‘practice management software’, and the legal support team had merged the two ‘cases’ as per an ordinary process and that it was at this stage that the Directions had been overlooked. The Applicant’s Representative cited administrative errors caused them to overlook the Directions until having received the email from the Commission on 29 November 2022.

1. The Applicant’s Representatives submitted that the Applicant was blameless and made reference to the findings of the Full Bench of the Commission in [2011] FWAFB 2728, Robinson v Interstate Transport Pty Ltd (Robinson). In particular, paragraph [36] at which an extension of time was granted as the result of a Representatives error. The decision in Robinson related to the filing of an Unfair Dismissal Application, the Applicant’s Representatives relied on it as an authority in the current situation. The Applicant’s Representative submitted that the Applicant was ‘blameless’ in the error.

FORM F4 APPLICATION

1. The Respondent filed pursuant to section 399a of the Act. The Applicant’s Representative submitted that given the error rested with the Applicant’s Representative that the Applicant did not unreasonably fail to comply. The Applicant’s Representative made reference to [2019] FWC 2181 Mr Alex Brown v The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool (Brown). In Brown, Deputy President Asbury stated that:

“The power under s. 399A of the Act to dismiss an application is discretionary. The exercise of the power is predicated on the unreasonableness of the conduct of an applicant in relation to the stipulated matters: failing to attend a conference or hearing; failing to comply with a direction or order of the Commission; or failing to discontinue an application after a settlement agreement has been concluded”

1. The Applicant was directed to provide her reasons why her Application for remedy from Unfair Dismissal should not be dismissed by no later than 4:00pm Monday 5 December 2022. In compliance with this Direction, the Applicant filed submissions as to the reason for the delay, citing that it was the result of an error from her Representative.

1. Later that day, I instructed my Associate to send the following correspondence to the parties:

“Dear parties,

I write in relation to the subject matter.

The Deputy President has considered the Applicant’s submissions in relation to the application by the Respondent.

The Deputy President intends to dismiss the Respondent’s application pursuant to s.399a with a formal decision and reasons to follow. The Respondent’s objection pursuant to s.388 will be dealt with in conjunction with the merits of the Unfair Dismissal Application.

As such the amended directions issued on 30 November 2022 remain on foot and the parties are expected to comply. “

1. On 6 December 2022, my Chambers received further correspondence from the Respondent informing they doubted the veracity of the submissions from the Applicant and submitting that the Applicant was responsible for ensuring she complied with the Directions, notwithstanding her being represented.

1. The Respondent submitted that the submissions from the Applicant were significantly lacking in particularity.

1. On 7 December 2022, I instructed my associate to send the following correspondence to the parties:

“Dear parties,

I write in relation to the subject matter.

The Deputy President has considered the submissions in relation to the Respondent’s Application to dismiss.

As per the directions, the Applicant is to file any supporting evidence in relation to the delay in providing her submissions.

“(c) An explanation and supporting evidence as to her failure to comply with the direction of the Commission.”

The Deputy President specifically seeks a signed witness statement from both the Applicant and the Applicant’s representative in support of the written submissions filed on 5 December 2022 and in consideration of the Respondents submissions of 6 December 2022. Any statement should be filed in conjunction with the material to be filed by no later than 4:00pm on Monday 12 December 2022. “

LEGISLATION

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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.”

EVIDENCE AND SUBMISSIONS

1. On the basis of information tendered by the parties in these proceedings, the factual background can be summarised as follows. The Applicant was employed at the time of the termination as a Project Manager and began her employment with the Respondent on 11 March 2013.

1. Mr Taylor of the Respondent advised the Applicant that she was to return all office equipment that she had in her possession, and that the Applicant’s employment ceased on 21 September 2022.

1. On 6 October 2022, the Applicant made an application under s.394 of the Act seeking a remedy for an unfair dismissal.

1. The Respondent submits that the Commission should exercise its power under s.399A of the Act to dismiss the Applicant’s unfair dismissal application on the grounds that she has failed to comply with a Direction or Order of the Commission.

1. In relation to the Respondent’s jurisdictional objection on the basis that it is a small business employer, the Applicant’s Representative submits a number of assertions that in summary claim that the Respondent did not follow the small business dismissal checklist and that there is no evidence that the Respondent is a small business. I note that the Applicant themselves has noted in her F2 that the Respondent meets the definition of a small business however, as previously stated, I intend to leave the jurisdictional issue to be tested more fully with the merits of the application.

1. In response to the Applicant failing to comply with my Directions, the Applicant’s Representative submits that this resulted from representative error and had it not been for that error the Applicant would have filed their material in time.[1]

1. The Applicant’s Representative relies on the findings of the full bench in Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728 (17 May 2011).[2]

1. The Applicant filed witness statements from herself, Ms Ria Silva and Mr Miles Heffernan of the Applicant’s Representative to support her submissions regarding her failure to file her material. The Applicant submitted that following her dismissal, she purchased a device with which she had limited familiarity, and this contributed to her missing the deadline in the Directions.

1. The Applicant stated that her record keeping has ‘suffered greatly during the process of coming to grips with the limited capacity” of her new device.

1. Ms Silva is employed as a legal support team leader with the Applicant’s Representative. Ms Silva provided a signed statement to support the submissions of the Applicant’s Representative regarding the non-compliance. Ms Silva described the ordinary process of case management performed by the Applicant’s Representative and that in the current matter, in focussing her attention to the date for the case management conference, she had neglected the Directions.

1. Ms Silva stated that as the result of her overlooking the Directions, the relevant dates had not been entered into the Applicant’s Representatives relevant calendar.

1. Mr Heffernan is employed as an Industrial Advocate with the Applicant’s Representative provided a signed statement in support of the Applicant’s submissions. Mr Heffernan stated that he is responsible for the email process as described by Ms Silva and stated that Ms Silva had made an error in the early steps of this process. Mr Heffernan stated that he has conducted a review of the matter with the IT Director at the Applicant’s Representative, been advised that Ms Silva is aware of the error and that he has implement a new system process to ensure an email regarding a matter is cross checked.

CONSIDERATION

Section 399A applications

1. The power under s. 399A of the Act to dismiss an application is discretionary. The exercise of the power is predicated on the unreasonableness of the conduct of an Applicant in relation to the stipulated matters, in this matter, failing to comply with a direction or order of the Commission. The Respondent’s application under s. 399A is based on subsection (1)(b) and in this regard it is asserted that the Applicant unreasonably failed to comply with a direction of the Commission to file material by a particular time.

1. I am not satisfied that the Applicant’s unfair dismissal application should be dismissed under s. 399A(1)(b) due to the unreasonable failure of the Applicant to comply with a direction or order of the Commission relating to the application.

1. It is true that the Applicant has failed to comply with Directions of the Commission. Directions issued by the Commission on 14 November 2022 required that the Applicant file material by no later than 4:00pm on Monday 28 November 2022. The Applicant failed to comply with that Direction.

1. Parties in proceedings before the Commission should comply with Directions of the Commission and should seek any extension in a timely manner in advance of the date by which compliance is required. Parties should also engage with the Commission and its staff in a courteous and responsive manner. Whilst the Applicant’s representative has cited an error in their administrative systems, the Applicant ought to have followed up with her representative in order to ensure the Directions were complied with however I accept that this has occurred on only one occasion.

1. In deciding whether to exercise a discretionary power to dismiss her application on the ground in s. 399A(1)(b) I am required to consider whether the Applicant’s failure to comply with a Direction of the Commission was unreasonable. Given the Applicant’s representatives admitted and explained error and the fact that there was only one occasion that the Applicant has failed to comply with my Directions I am not satisfied that in all of the circumstances that the Applicant’s failure was unreasonable.

CONCLUSION

1. For these reasons I am not satisfied that the discretion to summarily dismiss the Applicant’s unfair dismissal application should be exercised under any of the grounds in s. 399A. It will therefore be necessary to deal with the Respondent’s jurisdictional objections. In dealing with those objections the Commission will be required to determine matters of law and fact on the basis of the material filed by the parties, including making findings about the application of the Small Business Dismissal Code. While the assertions made by the Respondent have weighed against the exercise of the discretion to dismiss the Applicant’s unfair dismissal application, under 399A, the Commission is yet to determine the jurisdictional objection which I intend to address with the merits of the matter. Directions have been issued for this to occur and those Directions are expected to be complied with.

DEPUTY PRESIDENT

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[1] Submissions of the Applicant’s Representative, Industrial Relations Claims, dated 5 December 2022 [11]-[13]

[2] Paragraph [36].

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