Inessa Barkhazen v Conair Australia Pty Ltd T/A Conair Australia

[2016] FWC 2819

[2016] FWC 2819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Inessa Barkhazen
v
Conair Australia Pty Ltd T/A Conair Australia
(U2016/201)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 MAY 2016

Application for relief from unfair dismissal.

[1] On 13 January 2016, Ms Inessa Barkhazen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Barkhazen’s employment had been terminated by Conair Australia Pty Ltd on 4 January 2016.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Barkhazen was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 18 April 2016.

[4] On 18 April 2016, Ms Barkhazen’s representative requested an extension to file submissions. A further period of time was granted and Ms Barkhazen was required to file her material by 21 April 2016.

[5] On 26 April 2016 at 1.41 pm, Conair emailed the Commission seeking the dismissal of Ms Barkhazen’s application under section 399A of the Act. Conair based their objection on Ms Barkhazen’s failure to comply with directions of the Commission.

[6] On 26 April 2016 at 3.47 pm, Ms Barkhazen’s representative requested an extension to file submissions by 27 April 2016.

[7] On 26 April 2016 at 1.41 pm, Conair emailed an objection to the application and sought the dismissal of Ms Barkhazen’s application. Conair based their objection on Ms Barkhazen’s failure to comply with directions of the Commission.

[8] On 27 April 2016 at 12.43 pm, Ms Barkhazen filed and served her Witness Statement and Chronology in support of her application.

[9] On 27 April 2016 at 4.33 pm, Ms Barkhazen filed and served her Submissions.

[10] On 3 May 2016, at 4.29 pm Conair filed a Form 1 application objecting to the application and sought the dismissal of Ms Barkhazen’s application. Conair based their objection on Ms Barkhazen’s alleged failure to comply with directions of the Commission and because on the material filed, she had no prospects of success.

[11] On 3 May 2016 at 4.42 pm, Conair requested directions be amended to allow them to respond to the late filing of Ms Barkhazen’s submissions. Conair also requested a determination of the application to have the matter dismissed under section 399A and section 587 of the Act.

[12] On 4 May 2016, Ms Barkhazen was sent correspondence informing her of Conair’s section 399A application. Ms Barkhazen was directed to file submissions and other documentary material in respect of Conair’s application by close of business, on 16 May 2016. Ms Barkhazen was advised that if she failed to comply with this direction, her application would be dismissed.

[13] On 4 May 2016, Ms Barkhazen’s representative emailed the Commission submitting that due to personal illness he had sought extensions to file and serve documents and that all documents were filed and served by 27 April 2016.

Conclusion

[14] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[15] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[16] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[17] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[18] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[19] I am not satisfied that Ms Barkhazen has unreasonably failed to comply with a direction of the Commission.

[20] Even if I had found her non-compliance was unreasonable, I would not in my discretion have dismissed this matter. Ms Barkhazen has not indicated an unwillingness to have her matter ready for hearing. She has now filed her material.

[21] In these circumstances, I will dismiss Conair’s section 399A application.

[22] Further, Conair submitted that Ms Barkhazen is seeking to pursue both an unfair dismissal application and a general protections application.

[23] This submission misunderstands Ms Barkhazen’s submissions. An applicant can submit that a dismissal was unfair if the reason for the dismissal is prohibited under the general protections provisions of the Act. I am not able on the material currently before the Commission to find that the application has no reasonable prospects of success. I will therefore dismiss the s.587 application.

[24] Given that Ms Barkhazen did not file her material until 27 April 2016, I will provide Conair with an additional six (6) days to file its material. Conair is directed to file and serve an outline of submissions and any witness statements and other documentary material it relies on in opposition to the application in this matter by no later than 5.00 pm on 18 May 2016.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]

 3   PR 956665

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