Hargun Kaur v I-Power Management Pte Ltd
[2024] FWC 2006
•30 JULY 2024
| [2024] FWC 2006 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hargun Kaur
v
I-Power Management Pte Ltd
(C2024/3534)
| COMMISSIONER SCHNEIDER | PERTH, 30 JULY 2024 |
General protections dismissal dispute - application filed out of time – s 587 – application dismissed
Hargun Kaur (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with I-Power Management Pte Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent objects to Ms Kaur’s application on the ground that the application is out of time.
The matter was programmed for hearing to determine the out of time objection on 25 July 2024. However, the Applicant failed to appear at the hearing and as a consequence, the Respondent sought that the application be dismissed pursuant to s 587 of the Act.
In absence of any objections from the parties, I consider it appropriate to determine the matter on the papers.
Background
According to the Application Form, the Applicant alleged the Respondent had contravened sections 340, 343, and 352 of the Act. To summarise, as relevant to the current application, the Applicant claimed she was dismissed by the Respondent due to making a complaint about bullying, not getting proper training, and her right to receive medical treatment for a workplace injury.
In the Response Form, the Respondent denies all alleged contraventions of the Act. The Respondent asserts that the Applicant’s dismissal was due to her ongoing refusal to meet and engage with the Respondent in relation to the findings of the investigation or discuss steps forward to have her back in its business. The Respondent rejects all five alleged contraventions and provides reasoning for such. Further, the Respondent raised that the application was lodged on 28 May 2024 when the Applicant’s dismissal took effect on 6 May 2024, being one day outside of the statutory time limit.
Directions
First Directions
On 20 June 2024, my Chambers issued directions (First Directions) to the parties for a hearing of the out of time issue.
The First Directions contained a deadline for the parties to submit materials on representation by 25 June 2024. On 11 June 2024, the Commission received submissions from Australian Hotels Association requesting leave for a Ms Bianca Grubor to represent the Respondent in the proceedings (the Representative).
The First Directions contained a deadline for the Applicant to submit her material on the extension of time issue by 4:00pm on 28 June 2024, and listed the matter for hearing on Friday 19 July 2024
On 25 June 2024, the Applicant wrote to my Chambers requesting an extension to the hearing on 19 July 2024 due to medical reasons and to help her obtain legal representation. This correspondence requested an extension of 6 weeks. On 27 June 2024, the Respondent wrote to Chambers and the Applicant opposing the requested extension.
Second Directions
On 27 June 2024, my Chambers wrote correspondence to the parties. This correspondence indicated that I was satisfied that an extension to file materials should be granted, however a six-week delay is excessive given it is sought in part to obtain legal advice and that representation is neither required nor is it always permitted by the Commission. My Chambers then issued Directions (Second Directions) amending the hearing date to 23 July 2024 and extending the deadline for the Applicant’s materials to 5 July 2024.
On 3 July 2024, the Respondent wrote to Chambers requesting the 3 July 2024 hearing be rescheduled due to unavailability. On the same day, an email was received from the Applicant’s support person outlining that the Applicant would not be able to attend the hearing nor would she be able to submit any documentation.
Third Directions
On 4 July 2024, my Chambers issued directions (Third Directions) amending the hearing date to 25 July 2024 and extending the deadline for the Applicant to file her materials to 11 July 2024.
On 10 July 2024, my Chambers sent an email to the Applicant reminding her of the 11 July 2024 deadline and providing information as to what documents are to be filed. Later that day, the Applicant’s support person wrote to my Chambers notifying that they would not be able to prepare submissions due to medical issues and insufficient time being provided.
On 12 July 2024, my Chambers wrote to the parties informing them that the materials filed by the Applicant to date will be accepted as their materials regarding the extension of time issues. On 22 July 2024, the Respondent filed its material in accordance with the Third Directions.
Proposal to deal with matter on the papers
On 22 July 2024, my Chambers sent correspondence to the parties indicating that I had reviewed the materials filed by the parties and proposed determining the matter on the papers, without the need for the parties to appear at a Hearing. This correspondence required the parties to provide their views on this proposal by 10.00am on 24 July 2024. That same day, the Respondent indicated that it did not object to the matter being determined on the papers.
On 24 July 2024, my Chambers sent correspondence to the Applicant reminding her of the email sent on 22 July 2024 and requesting that a response be provided before the impending deadline of 10.00am. No response was received by the Applicant and consequently my Chambers sent a further email advising parties that the jurisdictional hearing would proceed as planned at 1.00pm on 25 July 2024 by Microsoft Teams.
Failure to attend hearing
On 25 July 2024, the hearing proceeded as scheduled. The Applicant failed to attend the hearing. My associate contacted the Applicant by telephone, however, was informed that she was unaware of the listing and would not be attending. In light of the Applicant’s failure to provide a reason for her earlier non-attendance at the hearing, the Respondent made oral submissions that the matter be dismissed under s.587 of the Act.
Following the hearing, my Chambers issued Directions for the filing of material with regards to the Respondent’s s.587 application. These Directions required the Respondent to file any material upon which it wishes to rely concerning s587 of the Act, by no later than 10am (AWST), Friday 26 July 2024, and the Applicant to file their material by no later than 10am (AWST), Monday 29 July 2024. No material was received from the Applicant.
Relevant law
Section 366(1)(a) of the Act is expressed as follows:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[3]
Section 577 of the Act requires the Commission undertake it functions fairly and quickly:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations. …”
Section 587 of the Act is expressed as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Consideration
The Applicant has advanced no material in relation to the existence of exceptional circumstances warranting an extension of time.
In determining whether to grant an extension of time, the Commission must take account of all the circumstances noted in section 366(2) of the Act. In relation to criteria (a), (b), (c) and (e) the Commission has no material on which to make a determination.
Having examined the materials, it is evident that the parties are in disagreement over all of the allegations and the circumstances surrounding them, evidence in respect of which should be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, in circumstances like the matter before me, it is not appropriate to resolve these issues in dispute in this forum.[4]
In the absence of a hearing of the evidence and the filing of materials it is not possible to make any sound assessment of the criteria in relation to granting an extension of time.
Conclusion
The Applicant has repeatedly failed to file materials and attend a hearing in support of her application and the granting of an extension of time. The Applicant has not provided any reasonable explanation as to her non-compliance despite being afforded several opportunities to do so. The Applicant has made no attempt to comply with any of the directions above. No materials to support any exceptional circumstances have been provided to the Commission for consideration.
The Applicant’s repeated non-compliance has prejudiced the Respondent in the ability to file materials or progress the matter.[5] The Respondent has expressed that it wishes for the application to be dismissed.
Given the above regrettable circumstances, I exercise my powers under section 587(3)(a) of the Act to dismiss this application on the initiative of the Commission.
An Order to that effect will be issued.[6]
COMMISSIONER
Hearing details:
On the papers
[1] [2011] FWAFB 975, at [13].
[2] [2011] FWAFB 975, at [13].
[3] [2018] FWCFB 901, at [17].
[4] [2011] FWAFB 975, at [36].
[5] Fair Work Act 2009 (Cth), s 577.
[6] [PR777650].
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