Giles v Coal Train Australia Pty Ltd
[2020] FWC 2274
•1 MAY 2020
| [2020] FWC 2274 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Crystal Giles
v
Coal Train Australia Pty Ltd
(U2020/925)
DEPUTY PRESIDENT ASBURY | BRISBANE, 1 MAY 2020 |
Application for an unfair dismissal remedy – Application filed outside time required in s. 394(a) – Applicant failed to comply with Directions – Applicant asserted technical difficulties with filing her application as reason for delay – Insufficient evidence of technical difficulties – No exceptional circumstances established – Extension of time to make application refused – Application dismissed.
OVERVIEW
[1] Ms Crystal Giles (the Applicant) applies under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by Coal Train Australia Pty LTd (the Respondent). The Form F2 Application for an unfair dismissal remedy filed by the Applicant and the Form F3 Employer Response to an unfair dismissal application filed by the Respondent, state that the Applicant was notified of her dismissal on 3 January 2020 and it took effect on that date.
[2] Section s.394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as allowed by the Fair Work Commission (the Commission) under s. 394(3). To meet the time requirement in s. 394(2) of the Act the Applicant was required to make her application by 24 January 2020. The Applicant did not lodge her application until 28 January 2020 – four days outside the prescribed period.
[3] The Respondent objects to the application on the basis that it was made outside the time required in s. 394(2) and further asserts that the dismissal was a case of genuine redundancy. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made. In addition to its jurisdictional objections, when the Applicant did not comply with a series of Directions issued by the Commission the Respondent filed an application under s. 399A seeking that her application be dismissed.
[4] At a hearing on 22 April 2020 I informed the parties that I had decided that there were not exceptional circumstances and that I would not to exercise the discretion in s. 394(3) to grant a further period for the Applicant to file her unfair dismissal application. I also informed the parties that I would issue reasons for that decision in due course. These are my reasons.
BACKGROUND
[5] As noted above, the Commission’s records indicate that the Applicant lodged her unfair dismissal application on 28 January 2020. The application was incomplete and following correspondence sent from the Commission the Applicant filed a completed application. The matter was listed for conciliation, before a Fair Work Commission Conciliator, on 4 March 2020, and was not resolved.
[6] On 10 March 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day legislated time frame and that before the merits of the application could be determined a decisions would need to be made by the Commission to extend the time in which the Applicant was allowed to lodge the application. The Applicant was also advised that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there were exceptional circumstances and setting out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act. The Applicant was invited to provide a response by 17 March 2020.
[7] The Applicant responded by email on 10 March 2020 stating that she had “registered the unfair dismissal claim on the 23rd or 24th” and had completed the form online, however “it timed out and I believed my form had been submitted.” The Applicant also stated that as she had not received an email in the following days, she contacted the Commission and was advised her online lodgement form did not submit properly. The Applicant further stated that she did not lodge her application prior to 23 January 2020 as she was unable to afford the application fee, and only became aware of the Form F80 – Waiver on the same date. 1
[8] The matter was allocated to me for hearing on 11 March 2020. A notice of listing was issued on 23 March 2020, for a Mention/Directions Conference by telephone on 31 March 2020. On 27 March 2020 the Applicant contacted my Associate as requested in the Notice of Listing and confirmed her contact telephone details for the Conference.
[9] On 31 March 2020 at the commencement of the Conference, my Associate attempted to contact the Applicant on multiple occasions but was unable to contact her on the mobile telephone number she had provided. The Respondent attended the telephone conference. The conference did not proceed because the Applicant was not available. Notwithstanding the Applicant’s failure to attend the conference, Directions were issued requiring the Applicant and the Respondent to file material in relation to whether a further period should be allowed for the application to be made.
[10] Relevantly, the Directions issued on 31 March 2020 set out the matters in s. 394(3) that the Commission is required to consider in deciding whether to grant a further period and required that the Applicant file a statement by 4:00pm on Tuesday 7 April 2020, addressing those matters. The Directions also required that any documents the Applicant sought to rely on be appended to the statement and that the statement include an explanation in relation to the relevance of the document. A link to a template was also provided to assist the Applicant to prepare her statement.
[11] The Directions stated under a heading “NON COMPLIANCE WITH THESE DIRECTIONS” that the Commission would not accept material that was 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 for compliance must be made to the Commission in writing and specify the grounds upon which an extension is sought and that any relevant documents such as medical certificates should also be provided. The matter was listed for Hearing on 22 April 2020 in relation to whether a further period should be granted to the Applicant.
[12] The Applicant did not comply with the Directions and did not file her material by 7 April 2020 as requested. The Applicant also did not seek an extension of time to file her statement as required by the Directions. On 8 April 2020, at my request, my Associate sent the following correspondence to the Applicant, with a copy to the Respondent:
“Dear Ms Giles,
I refer to the above matter, and the attached Directions issued on 31 March 2020.
As per the Directions, you were required to file and serve a statement setting out the basis on which you sought to make this application by 4.00pm on Tuesday 7 April 2020. I am not in receipt of a statement from you, or any request for an extension of the time you had to file your statement. It is again noted that you failed to attend the Conference on 31 March 2020, despite numerous attempts to contact you on the mobile telephone number you had confirmed to the Commission.
The Deputy President has asked me to communicate that if you do not immediately advise your intentions to file your material or to otherwise pursue this application, your application may be dismissed pursuant to s. 587 of the Fair Work Act 2009. Further, as was communicated in the below correspondence sent to you on 31 March 2020, the Respondent has also prefaced making an application under s.399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed. Your application may also be dismissed pursuant to s.399A of the Fair Work Act 2009 if such an application is received from the Respondent.”
[13] At 6:31 pm on 8 April 2020, the Applicant sent correspondence to Chambers (without copying that correspondence to the Respondent) stating:
“Yes I want to persue [sic]. Will respond first thing tomorrow morning”
[14] At 10:11 pm on 8 April 2020, the Respondent sent correspondence to my Chambers (also copied to the Applicant) and filed a Form F1 application seeking that the Applicant’s unfair dismissal application be dismissed pursuant to s. 399A(1) of the Act.
[15] The Applicant did not contact my Chambers on the morning of 9 April 2020 or at any time on that date. At 2:29 pm on 9 April 2020, I instructed my Associate to send correspondence to the parties, noting that the Applicant had not provided an explanation for why she failed to attend the Mention/Directions conference on 31 March 2020 or why she failed to comply with the Directions and had not indicated when she would file her statement. As set out in that email, the Applicant was given a further opportunity to file material and was directed to file a statement by midday on 14 April 2020 addressing the following matters:
• The Applicant’s failure to attend the Mention/Directions Conference on 31 March 2020;
• The Applicant’s failure to comply with the Directions issued on 31 March 2020; and
• The basis upon which the Applicant asserts that she should be granted a further period in which to make her application in accordance with the Directions issued on 31 March 2020 which were attached to the email.
[16] The Respondent was given until midday 21 April 2020 to file any material in response or any material in support of its s.399A application. The parties were advised in that email that hearing listed on 22 April 2020 would also deal with the s.399A application. The email also put the Applicant on notice that if she failed to file her statement, or if she failed to attend the telephone hearing, her application may be dismissed without further notice.
[17] At 2:49 pm on 9 April 2020, the Applicant telephoned Chambers, advising that she had received a few emails however was confused about what she was required to do. The Applicant sought during her telephone conversation with my Associate, to provide reasons for her delay and her non-compliance. My Associate advised the Applicant that this method of providing the required information was inappropriate and that she should comply with the further Directions.
[18] On 14 April 2020, the Applicant sent three separate emails purporting to comply with the further Directions issued on 9 April 2020. Those emails did not address all the matters that set out in the further Directions and were not in the form of a statement. The Respondent filed submissions in support of its application under s.399A of the Act and in support of why the Applicant should not be granted a further period in which to make her application. At 4:07 pm on 21 April 2020, my Associate emailed the parties confirming that they would be contacted at 12:00 pm on 22 April 2020 for the telephone hearing.
HEARING
[19] The hearing proceeded on 22 April 2020. At the hearing the Applicant was given an opportunity to explain her failure to comply with the Directions and to contact the Commission in advance of her non-compliance to seek an extension. The Applicant maintained that she had explained the reasons for these matters in her emails to the Commission and relied on the contents of those emails to support the grant of a further period to make her application and to oppose the Respondent’s s. 399A application.
[20] The Respondent filed a submission and a witness statement in support of its s. 399A application and in opposition to the Applicant being granted a further period in which to make her unfair dismissal application. For reasons which will be apparent, it was not necessary to hear from the Respondent at the hearing.
[21] Notwithstanding the Applicant’s failure to comply with Directions I have considered the entirety of her communication with the Commission in deciding whether she should be granted a further period in which to make her application. The communication, in the form of emails, is as follows. On 10 March 2020 in response to correspondence from the Associate to Vice President Catanzariti in relation to her application being filed outside the period required by s. 394(3) the Applicant sent the following email:
“good afternoon
Thank you for your email.
I am still applying for an extension due to the following circumstances.
I registered the unfair dismissal claim on the 23rd or 24th, originally within the allocated time frame and have been advised the Commission will be able to see that registration for that date. I completed the claim and submitted my form, however it timed out and I believed my form had been submitted. At the end of the claim it stated I would receive an email in due time to confirm my claim and the steps to follow etc. When I did not receive that in the next few days I called the commission and requested the progress of my case. I was advised that the form did not submit online properly and to send it in via email that day, which I did on the 28th of January.
The only reason I did submit my claim earlier than the 23rd was that I did not have the funds and could not afford the fee as losing my job created financial hardship, however came across the waiver form on the 23rd and submitted this along with the unfair dismissal claim.”
[22] The emails sent to my Chambers on 14 April 2020 were in the following terms:
Email received at 10:15 am:
“I am responding to the notice of listing I was unable to attend, I was unable to attend due to a work webinar that was held at the last minute by my employees to update us on the latest policy for COVID 19. This webinar went for some time and was mandatory for all staff to attend. I realise this was an inconvenience, however keeping my current employment is my main priority.
I have requested time off to attend the hearing on the 22nd and do not see anymore interruptions in the foreseeable future.”
Email received at 11:48 am:
“I failed to attend the notice of listing due to new employment, due to the COVID 19 my employer held a last minute meeting on how we are to move forward with the COVID 19 and delivering training to our students in compliance with the government. As we are dealing with a global pandemic sustaining my current employment must be the priority and in the interest of justice I believe an extension of time should be granted.
I will not be submitting any new evidence at this stage and no witnesses to be called.”
Email received at 2:55 pm:
“Upon reflection of my last email I sincerely apologise for my delay and not attending the notice of listing, I have not been in a very good place since my termination from Coal Train. However after some thought I would like to say that this will never happen again. It has been an incredibly overwhelming process for me, I do not have legal representation so I do find it difficult to comprehend all the legal requirements requested. I also find it very conflicting that I was terminated on the 3rd and my separation certificate states I was made redundant. I have sent evidence to support it was not a genuine redundancy.
I genuinely was unable to attend the notice of listing due to current work conflictions. My company is struggling through this global pandemic like so many others and by attending the notice of listing and not attending a full staff meeting, I would be putting my own job at severe risk. I can not risk going into deep financial hardship again after experiencing that following my termination from Coal Train.
Please allow me an extension of time so we may proceed with the claim”
CONSIDERATION
The approach to determining whether a further period should be granted
[23] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[24] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.2
[25] Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.3
[26] The assessment of whether “exceptional circumstances” exist requires consideration of all of the relevant circumstances. No one factor, such as the reason for the delay need be found to be exceptional in order to enliven the discretion to extend time. However an absence of any explanation for any part of the delay will usually weigh against an extension while an acceptable explanation for all of the delay will usually weigh in favour of an extension. It is necessary to take each factor into account by considering and giving appropriate weight to it. 4
[27] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period. 5 It is not a pre-condition to the grant of an extension of time that an applicant provide a credible explanation for the entire period of a delay and an extension may be granted where an applicant has not provided any explanation for any part of the delay.6
[28] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.7 Events and circumstances prior to the dismissal and in the period from the dismissal to the date the prescribed 21 day period expired may also be relevant to explaining a delay or to considering other matters in s. 394(3) to determine whether there are exceptional circumstances justifying the grant of a further period in which to make an unfair dismissal application. As the majority in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank observed:
“The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.” 8
[29] I turn now to consider each of the matters in s.394(3) of the Act.
The reason for the delay – s. 394(3)(a)
[30] The period of the delay is four days. I do not accept the submission of the Respondent that the incomplete application made on 28 January was not validly made by virtue of being incomplete. That submission is contrary to Full Bench Authority in Arch v Insurance Australia Group Services Pty Limited 9.
[31] Despite repeated opportunities being given to the Applicant to establish the reason for the delay in filing her application, she has put nothing before the Commission by way of evidence or a coherent statement about the attempts she claims to have made to file her application within time. According to the material on the file and the correspondence with the applicant an incomplete application was filed with the Commission electronically at 8.00pm on 28 January 2020.
[32] If the Applicant wished to assert that she made a bona fide attempt to lodge her application within the required time but was prevented from doing so because of technical issues, then it was incumbent upon her to place evidence before the Commission about the steps she took or attempts made to lodge her application, when the steps were taken or the attempts made and what technical difficulties were encountered. The Applicant had numerous opportunities to provide a statement to the Commission in relation to these matters and has not done so. The only evidence having any relevance to these assertions is the email sent to the Chambers of Vice President Catanzariti on 10 March 2020. I am unable to be satisfied, on the basis of the contents of that email, that the Applicant has established the technical difficulties she asserts.
[33] First, the Applicant has not given clear evidence about the date upon which she claims to have attempted to lodge her application stating that it was “either the 23rd or 24th” – presumably dates in January. The Applicant did not provide details of who advised her that the Commission would be able to “see” when she made these attempts or when contact was made with the Commission about her alleged technical difficulties. Further, if the attempt at submitting the Form “timed out” the Applicant should reasonably have known this by virtue of not receiving an electronic confirmation that her application had been successfully lodged. As the Respondent points out in its submissions, there is information on the Commission’s website informing persons lodging unfair dismissal applications that the system will time out if there is no activity for twenty minutes.
[34] It is also the case that the following text appears on the webpage of the online form: “How do I know if my application has been received? You will receive an automated email confirming that your application has been successfully lodged.” The Applicant asserts that when she did not receive this advice “in the next few days” she telephoned the Commission to check on the progress of her application and was advised that it had not been submitted properly on line and that she should send it in via email “that day”. The Applicant states that she did this. The covering email sent with the application indicates that it was sent at 8.00 pm on 28 January 2020 (or 9.00 pm given time differences between the location of the sender and the recipient). Whether the email was sent at 8.00pm or 9.00pm, on 28 January 2020, that time is inconsistent with the Applicant’s statement that she took this step after speaking to a staff member of the Commission.
[35] As previously noted, the Applicant lodged an incomplete application on 28 January 2020 and after being contacted by staff of the Commission filed a further version on 3 February 2020. The incomplete application filed on 28 January 2020 at 8.00pm (or 9.00 pm) was filed by email and was filled out electronically. The Applicant also answered “Yes” to the question on the application asking whether the application was being filed within 21 days of the dismissal taking effect. The incomplete application was not signed or dated and the Applicant had not completed the part of the application to either make payment of the application fee or apply for a waiver of the fee.
[36] A completed application was filed by the Applicant on 3 February 2019, in which the Applicant included handwritten information. The completed application is signed and dated 28 January 2020 which further evidences that this was the day the application was originally filed.
[37] The Respondent submitted that in Nulty v Blue Star Group Pty Ltd 10at [25] and [38] a Full Bench of the Commission held that assertion of technical issues unsupported by evidence, could not support a finding of exceptional circumstances. While the Full Bench in that case quoted extracts of the Decision under appeal which included reference to lack of evidence about technological difficulties, it did not make a definitive finding about this matter either in the passages referred to in the submission for the Respondent or elsewhere in the Full Bench Decision.
[38] Notwithstanding this I accept that an Applicant seeking to establish exceptional circumstances on the basis of technical difficulties associated with lodging the application, is required to provide evidence to establish the nature and the impact of those difficulties. At very least, an Applicant assertion such difficulties should provide evidence about when attempts were made and what those attempts consisted of including documentary evidence where it is available. For example, in Arch v Insurance Australia Group Services Pty Limited there was evidence of technical issue associated with a maintenance closure of the Commission’s portal at or around the time that the Applicant established that he was attempting to lodge his application 11. The Applicant provided sufficient evidence of the time at which his attempts were made including copies of a partially completed application sufficient to establish that he did attempt to lodge it a time when he reasonably believed that the Commission’s portal was not functioning and that this was the only way to lodge his application.
[39] In the present case there is insufficient evidence about the attempts made by the Applicant to file her material and when she made those attempts. The incomplete application, while being validly made, does not contain information to enable conclusion to be reached or inference to be drawn as to when it was prepared, to support the Applicant’s assertions that she attempted to lodge it on 23 or 24 January 2020. As a result, there is no credible explanation for the delay in lodging the application. The lack of a credible explanation for the delay in filing the application is a matter that weighs against the exercise of the discretion to grant a further period for the application to be made.
Whether the person first became aware of the dismissal after it had taken effect – s.
394(3)(b)
[40] The Applicant became aware of the dismissal on the date that it took effect – 3 January 2020 – as evidenced by the statement to this effect in her application. There was no confusion or lack of clarity which could have contributed to the delay and this is a factor that weighs against the exercise of the discretion to grant a further period for the application to be made.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[41] There is no evidence that the Applicant took any action to dispute her dismissal other than filing an unfair dismissal application. However, this is not a case where any lack of action on the part of the Applicant is combined with a lengthy delay. On balance this is a neutral consideration.
Prejudice to the employer including prejudice caused by the delay – s. 394(3)(d)
[42] The Respondent asserts that it will suffer prejudice if a further period is granted on the basis that:
“(a) due to redundancies and voluntary resignations since 3 January 2020, 8 people in the Applicant’s team are no longer employed by Coal Train and the difficulty/impossibility of obtaining evidence from those persons will cause Coal Train to suffer prejudice;
(b) the Respondent has incurred unnecessary legal expense and will continue to
incur legal expense;
(c) continuation of the proceedings will cause employee downtime;
(d) the Respondent has restructured its organisation on the basis that the Applicant did not contest her dismissal and that her position is no longer required;
(e) the Applicant’s Application is so vague and lacking in particulars that it would be unfair to require Coal Train to respond to those allegations out of time. None of the contentions in the Applicant’s Application address the relevant criteria for considering whether a dismissal was harsh, unjust or
unreasonable. The factors specified by the Applicant under the hearing “why was the dismissal unfair” do not provide a basis for concluding that her dismissal was unfair within the meaning of section 385 of the Fair Work Act2009 (Cth). The basis upon which the Applicant intends to address the relevant criteria is totally unclear to the Respondent. The Respondent will be prejudiced in attempting to respond to these issues at the time of the hearing as the events occurred some time ago.”
[43] While I accept there will be some prejudice to the Respondent employer if a further period is granted to the Applicant, the submissions made on the Respondent’s behalf overstate this factor. The Respondent has incurred legal expense because it opted to be represented and permission has not been granted at this point and may be refused if the matter proceeded to hearing. Any lack of precision in the pleadings set out in the application would also be addressed by the provision of submissions and statements of evidence if the matter proceeded to hearing. The downtime caused by the participation of employees in an unfair dismissal hearing is prejudice that would be suffered even if the application was lodged within time. In any event, the Respondent would put on its material first given that it has raised a jurisdictional objection on the grounds of genuine redundancy and could do so regardless of any inadequacy in the pleadings of the Applicant as set out in her application.
[44] It is also not immediately apparent why the Respondent would need to call evidence from other members of the Applicant’s team who were also made redundant to put evidence before the Commission in relation to its this when presumably a decision maker in relation to the redundancies would be available to give evidence. It is also the case that the delay is not extensive. On balance this is a neutral consideration.
Merits of the application – s. 394(3)(e)
[45] In the matter of Kornicki v Telstra-Network Technology Group 12 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 13
[46] The Applicant asserts that she was given no reason for the termination of her employment other than the employment separation certificate she was provided with indicates redundancy as the reason for dismissal. The Applicant also asserts that someone else has been hired to do her job.
[47] The Respondent asserts that the dismissal was a case of genuine redundancy. This is not apparent from the termination letter tendered by the Respondent with its material which makes no mention of redundancy. It is apparent that there are disputed facts which could only be resolved by evidence. In these circumstances I have considered the merits of the application as a neutral factor in my determination as to whether the discretion to grant a further period to make the application.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[48] There is no evidence that there are any other employees in a similar position to the Applicant. This is a neutral factor. If this consideration requires fairness to be considered on a broader scale, then a refusal to grant a further period in the circumstances of this case will not be inconsistent with other cases where employees have been refused a further period when the reasons for the delay have been similar or the same as those provided in the present case and consistent with Full Bench authority in Nulty v Blue Star Group Pty Ltd.
CONCLUSION
[49] After weighing each of the matters I am required to consider, I am not satisfied that when they are considered individually or collectively, there are exceptional circumstances taking into account the matters in s. 394(3) of the Act such that the discretion to grant a further period in which to make the application should be exercised in favour of the Applicant. Accordingly, the application must be dismissed and an Order to that effect will issue with this Decision.
[50] In those circumstances it is not necessary that I deal with the s. 399A application made by the Respondent. However, I note that the Applicant did not prosecute her application with diligence. Even allowing for the fact that she obtained alternative employment and was otherwise occupied, her lack of response to numerous attempts to engage with her and give her an opportunity to present her case has caused inconvenience to the Respondent and to the Commission. I accept that the Applicant gave priority to her new employment and that she may have been required to attend a training program at short notice. However, I note that the Applicant was not proactive in explaining her non-compliance and any explanation was only given in response to requests from the Commission. Further the explanations provided did not properly engage with the questions posed to the Applicant.
[51] In all of the circumstances, even if I was satisfied that time should be extended it is probable that I would have dismissed the application pursuant to s. 399A in any event.
DEPUTY PRESIDENT
Appearances:
Ms C Giles on her own behalf.
Ms E Pritchard of Harmers Workplace Lawyers on behalf of the Respondent.
Hearing details:
22 April.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR718728>
1 Email from Applicant, dated 10 March 2020.
2 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
3 Nulty v Blue Star Group [2011] FWAFB 975.
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
5 Stogianniadis op. cit. at [22].
6 Stogianniadis op. cit. at [40].
7 Ibid at [15].
8 [2015] FWCFB 287 at [12].
9 [2020] FWCFB 601.
10 [2011] FWAFB 975.
11 Op. cit. at [39] – [41]
12 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
13 Ibid
0
5
0