Gina Resul v Fantastic Lights

[2014] FWC 6216

[2014] FWC 6216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gina Resul
v
Fantastic Lights
(U2014/3897)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 17 January 2014, Ms Gina Resul made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Resul’s application notes that her employment had been terminated by Fantastic Lights on 29 December 2013. Fantastic Lights, in its response to Ms Resul’s application, noted that Ms Resul had resigned from her employment on 24 December 2013.

[2] Both parties were directed to file an outline of submissions, any witness statements and other documentary material they wished to rely on. Ms Resul was due to file her material on 19 May 2014 and 10 June 2014.

[3] On 12 May 2014, Ms Resul contacted the Commission and advised that she was unaware that the matter had been listed or that directions had been issued as she had not received the notice of listing. The Commission advised Ms Resul about the process for requesting an extension of time to file her material. Another copy of the listing and directions were posted to Ms Resul by express post.

[4] On 14 May 2014, both parties requested an extension of time to the file their submissions. The Commission accommodated these requests and amended the directions. Ms Resul now had to 4 June 2014 and 25 June 2014 to file her material.

[5] Ms Resul did not comply with these directions and despite being aware of the process to seek an extension of time, did not make contact with the Commission. The matter was listed for a non compliance hearing before Commissioner Wilson on Tuesday, 10 June 2014.

[6] Ms Resul did not attend the non compliance hearing. Fantastic Lights made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Resul had failed to comply with the directions of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Fantastic Lights’ oral application.

[7] On 10 June 2014, Ms Resul was sent correspondence informing her of Fantastic Lights’ section 399A application. Ms Resul was directed to file submissions and other documentary material in response to Fantastic Lights’ application by close of business, on 24 June 2014. Ms Resul was advised that if she failed to comply with this direction, her application would be dismissed.

[8] On 20 June 2014, Ms Resul sent correspondence to the Commission requesting a six to ten week adjournment of any hearing on medical grounds. Ms Resul advised that she would provide a medical certificate after 8 July 2014, being the earliest available appointment with her doctor.

[9] Fantastic Lights objected to Ms Resul’s adjournment request on various grounds, namely:

● that they should not be required to wait indefinitely whilst Ms Resul waits for her physical health to improve; and

● they have complied with the Commission’s directions and orders in relation to the filing of witness statements and submissions.

[10] On 1 July 2014, Ms Resul contacted the Commission by telephone. She reconfirmed that she would provide a medical certificate after 8 July 2014. Following this conversation, correspondence was sent to Ms Resul which advised that if a medical certificate was not provided by 15 July 2014, her application would be dismissed.

[11] On 9 July 2014, the Commission received Ms Resul’s medical certificate dated 8 July 2014 which stated that Ms Resul was unfit to attend the Commission’s hearing from 8 July 2014 to 16 September 2014 inclusive.

[12] On 24 July 2014, Commission Wilson issued further directions requiring Ms Resul to file submissions providing reasons as to why her application should continue. Ms Resul was advised that should she wish to rely on medical evidence, she was required to provide details of her condition and why this condition keeps her from attending to the application. She was also asked to provide detail as to how long the condition was expected to keep her from the application. Ms Resul was required to provide this information by close of business, 7 August 2014. Fantastic Lights was also provided with an opportunity to file submission in reply by close of business on 21 August 2014, should it wish to, outlining why the matter should be dismissed.

[13] On 6 August 2014, Ms Resul sent through an updated medical certificate in response to Commissioner Wilson’s direction. The medical certificate advised that Ms Resul’s medical condition meant she was unfit to attend the Commission hearing until 16 September 2014.

[14] The medical certificate did not provide a date as to when Ms Resul may be able to attend to her application. Further, Ms Resul did not provide any other material.

[15] On 15 August 2014, Fantastic Lights provided submissions to support its application that Ms Resul’s application should be dismissed.

[16] Fantastic Lights relied on its submissions of 4 June 2014 in which it contended that Ms Resul resigned her employment voluntarily. Fantastic Lights submitted that it had complied with the Commission’s directions and said that Ms Resul’s medical certificates did not constitute as “a proper submission”.

[17] Fantastic Lights submitted that Ms Resul is unable to properly proceed with her application because of medical condition. It said that her medical certificates do not indicate when Ms Resul will be in a position to pursue her claim in a timely manner. Fantastic Lights submitted that two months have passed since it complied with the Commission’s directions and the matter had not progressed any further. Further, it submitted that it was entitled to have the matter dealt with in a timely manner and said that there is no evidence, before the Commission, which suggests when Ms Resul will be able to prosecute her claim.

[18] On 12 September 2014, Ms Resul requested another adjournment on medical grounds. She attached a medical certificated. That medical certificate stated that Ms Resul’s medical condition meant she had limited ability to complete the preparation of her case. That medical certificate further advised that Ms Resul had other litigation on foot.

[19] As Fantastic Lights had not provided Ms Resul with a copy of its August submissions, on 15 September 2014 Ms Resul was forwarded a copy of the submissions by Fantastic Lights and was directed to respond to those submissions by 2 October 2014.

[20] Ms Resul did not respond to this direction.

[21] 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.

[22] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. The only evidence before the Commission in the application to dismiss is Ms Resul’s medical certificate.

[23] There are no factual disputes between the parties that need to be determined in this matter. Fantastic Lights did not dispute that Ms Resul is unwell. It submitted that because there is no indication that Ms Resul will ever be ready and able to continue the application that her application should be dismissed.

[24] I share Fantastic Lights’ concerns. Ms Resul’s employment ended on 29 December 2013. Apart from participating in a conciliation conference, Ms Resul has not prosecuted her claim. Ms Resul sought and obtained an extension of time to file her material and there was no mention in that correspondence of any medical condition. That request was granted. Ms Resul failed to comply with the revised directions. She did not seek an extension of time to file the material before the date for compliance had passed, despite a number of phone calls from the Commission’s staff reminding her of overdue submission and despite knowing what she needed to do to seek an extension of time. Ms Resul did not participate in the non compliance hearing. It was only after Ms Resul was advised that her application might be dismissed that she sought an adjournment of her claim on medical grounds.

[25] I accept the submissions of Fantastic Lights that an unfair dismissal application cannot be adjourned indefinitely. This is particularly so when the primary remedy for unfair dismissal is reinstatement. Even if reinstatement is not sought, it is difficult to see what compensation would be available to a successful applicant who is medically unfit to work ten months after the termination of employment.

[26] Fantastic Lights is a small business. It has complied with the directions to file material.

[27] The power to dismiss is discretionary. Before the discretion is exercised there must be an application by an employer and relevantly in this case a failure to comply with directions. The Explanatory Memorandum stated that the power dismiss 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.”    1

[28] In Ghalloub v Aon Risk Services Australia Limited 2 a Full Bench identified the considerations relevant to the exercise of discretion to summarily dismiss a matter for non compliance with directions. I adopt the approach outlined there.

[29] I have some doubt about the medical evidence supporting Ms Resul’s explanation for her non compliance, particularly as that evidence was not provided to the Commission in a timely fashion and was only provided after the application to dismiss was made. Further the medical certificate suggests that part of the reason for Ms Resul’s inability to prosecute this claim is because she is prosecuting other claims.

[30] However Fantastic Lights does not dispute that Ms Resul is ill. It did not in its submissions point to any prejudice it has suffered by the delay. In those circumstances I am not prepared to exercise my discretion to dismiss Ms Resul’s application at this time.

[31] Fantastic Lights have submitted evidence and submissions to support its contention that Ms Resul was not dismissed and that she resigned her employment. If Ms Resul resigned from her employment she is not protected from unfair dismissal.

[32] I will provide Ms Resul with a further one month to file material in response to the material filed by Fantastic Lights to support its contention that she resigned her employment. The matter will be listed for hearing on 11 November 2014. At that hearing, Fantastic Lights’ objection to Ms Resul’s application will be heard and determined.

DEPUTY PRESIDENT

<Price code A, PR555194>

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at p36

 2   PR956665 at [24]-[27]

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