Indira Lolic v Services Australia Summary

[2024] FWC 2680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Indira Lolic
v

Services Australia

(U2024/8223)

COMMISSIONER PERICA

MELBOURNE, 26 SEPTEMBER 2024

Application for an unfair dismissal remedy

On 16 July 2024, Mrs. Indira Lolic commenced a proceeding for an unfair dismissal remedy against Services Australia.

Procedural History

On 23 July 2024, a notice of listing was sent to the parties for a conciliation before a Fair Work Commission conciliator, which was listed for 11:45 AM on 16 August 2024 by Microsoft Teams.

On 16 August 2024, Mrs. Lolic did not attend that conciliation and did not respond to telephone calls from the Commission on that date. She did not subsequently explain her non-attendance.

The matter was allocated to my Chambers and on 2 September 2024, a notice of listing was issued for a mention hearing by Microsoft Teams at 11:00 AM on 6 September 2024.

On 4 September 2024 and on 6 September 2024 shortly before the mention, my Chambers attempted to contact Mrs. Lolic by telephone. On both occasions, there was no response and a voice message could not be left as the message bank was full.

On 6 September 2024, Mrs. Lolic failed to attend the mention hearing and did not provide any explanation.

I subsequently issued directions requiring Mrs. Lolic to file material in support of her application by 22 September 2024. No material was received.

I granted an extension to 12:00 PM on 24 September 2024, noting that a non-compliance hearing would be listed if she did not file any material. Despite the additional extension, the Commission received no material.

A notice of listing was issued on 24 September 2024 for a non-compliance hearing on 25 September 2024 by Microsoft Teams. Services Australia, later that day, filed submissions in support of an application under s 399A for the Commission to dismiss this application for want of prosecution by reason of her serial failure to attend conferences or meet directions of the Commission.

On 25 September 2024, shortly before the non-compliance hearing, my Chambers unsuccessfully attempted to contact Mrs. Lolic by telephone.

Relevant Law

Section 399A of the Act provides:
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.

Consideration

Since filing the application, Mrs. Lolic has failed to attend any listed conciliation conference or hearing in this matter. She has not met any direction made by the Commission. She has not corresponded with the Commission in any capacity aside from filing her application. It is expected that if Mrs. Lolic regarded the circumstances of her dismissal justified commencing a legal proceeding she would participate and give it some priority. In this case, it is apparent she has not.

In those circumstances, the conduct of Mrs. Lolic demonstrates that she unreasonably failed to comply with directions and to attend conciliation conferences, or hearings in the matter. In those circumstances I dismiss this application for want of prosecution under s 399A(1).[1]

COMMISSIONER

[1] PR779681.

Printed by authority of the Commonwealth Government Printer

The matter of Indira Lolic v Services Australia involved a claim by Mrs. Lolic for an unfair dismissal remedy against her former employer, Services Australia. Mrs. Lolic filed the application on 16 July 2024, seeking relief under the Fair Work Act 2009. The case was initially scheduled for conciliation before a conciliator of the Fair Work Commission on 16 August 2024. However, Mrs. Lolic did not attend the scheduled conciliation, nor did she respond to attempts by the Commission to contact her. The matter was subsequently heard by Commissioner Perica on 6 September 2024, but Mrs. Lolic again failed to attend. Despite extensions granted for filing supporting material, Mrs. Lolic did not comply with the Commission's directions. Consequently, Services Australia applied for the dismissal of the case under section 399A of the Act.

The central legal issue before the court was whether Mrs. Lolic's failure to attend the scheduled conciliation and hearings, and her non-compliance with the Commission's directions, warranted the dismissal of her application for want of prosecution. Under section 399A(1) of the Fair Work Act 2009, the Fair Work Commission has the authority to dismiss an application if the applicant has unreasonably failed to attend a conference or hearing, or comply with a direction or order of the Commission. The court had to assess whether Mrs. Lolic's actions constituted unreasonable failure, justifying the dismissal of her application.

The Commissioner found that Mrs. Lolic's repeated failure to attend the scheduled conciliation and hearings, as well as her non-compliance with the Commission's directions, demonstrated unreasonable conduct. Given that Mrs. Lolic had not provided any explanation for her non-attendance or met any of the Commission's directions, the Commissioner concluded that her conduct was unreasonable. Accordingly, the Commissioner dismissed the application under section 399A(1) of the Act. The Commissioner noted that if Mrs. Lolic believed her dismissal circumstances justified a legal proceeding, she would have likely participated more actively. However, her lack of engagement suggested that she did not prioritize the matter.

The court's final order was that Mrs. Lolic's application for an unfair dismissal remedy was dismissed for want of prosecution under section 399A of the Fair Work Act 2009. The Commissioner's decision highlights the importance of adherence to procedural requirements and the consequences of failing to participate in the legal process as expected.

Indira Lolic v Services Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established