Ioanna Skiadas v Australia and New Zealand Banking Group Limited
[2023] FWC 1194
•19 MAY 2023
| [2023] FWC 1194 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ioanna Skiadas
v
Australia and New Zealand Banking Group Limited
(U2023/3675)
| COMMISSIONER YILMAZ | MELBOURNE, 19 MAY 2023 |
Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.
On 28 April 2023, the Applicant, Miss Ioanna Skiadas (Miss Skiadas) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Skiadas alleged she was unfairly dismissed by the Respondent, Australia and New Zealand Banking Group Limited (ANZ) on 4 April 2023.
Miss Skiadas states in her Form F2 - Unfair Dismissal Application that she commenced employment with ANZ in 2016 (and that she previously worked for ANZ in 2012) and that her dismissal took effect on 4 April 2023. ANZ’s response also corroborated the termination date specified in Miss Skiadas’s Form F2. However, it states that Miss Skiadas commenced working for ANZ on 21 August 2017.
The Application was lodged 3 days after the 21 day statutory limitation specified in s.394(2)(a) of the Act. As the matter was not properly before the Commission it was allocated to me to determine whether to grant Miss Skiadas an Extension of Time. On 4 May 2023 my chambers sent out an email explaining that the Application appeared to be out of time and issued a notice of listing for a mention/directions hearing for 5 May 2023.
On 5 May 2023, my chambers made 2 attempts to call Miss Skiadas and left two voicemail messages advising her she was required to attend the mention/directions hearing. The hearing proceeded, and Miss Skiadas failed to attend. Following the hearing, I issued directions that Miss Skiadas was to file her submissions by 5pm on Friday 12 May 2023.
On 11 May 2023, my chambers attempted to call Miss Skiadas and left a voicemail reminding her that she needed to file her submissions the next day, Friday 12 May 2023.
Miss Skiadas failed to file any submissions.
On 15 May 2023, my chambers received an email from ANZ requesting confirmation as to whether Miss Skiadas had filed her submissions and if not what the next steps were to be.
At 10:50am that day, my chambers sent out an email to Miss Skiadas requesting she file her submissions immediately and that failure to do so would result in the matter being listed for a non-compliance hearing.
At 1:57pm that day, my chambers issued a notice of listing for a non-compliance hearing 2pm Tuesday 16 May 2023.
On the day of the non-compliance hearing ANZ was present and Miss Skiadas could not be contacted. My chambers attempted to telephone Miss Skiadas and a voicemail message was left requesting her urgent attendance. No response was received.
During the hearing, ANZ requested Miss Skiadas’s matter be dismissed due to the Miss Skiadas’s consistent failure to comply with directions.
Following the non-compliance hearing Miss Skiadas was given a further opportunity to contact the Commission and she was put on notice that should she not respond by 5pm 18 May 2023, her application would be dismissed.
To date, Miss Skiadas has not provided any response as to why her Application should not be dismissed.
The Legislation
Section 399A of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal under subsection 1 when an application is made by the employer. Relevantly, s.399A 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.”
ANZ made an application on 16 May 2023 during the non-compliance hearing to dismiss the Application pursuant to s.399A of the Act and submits that Miss Skiadas has failed to comply with directions and failed to engage with the Commission to prosecute her application.
While ANZ has made an application to dismiss Miss Skiadas’s application, the Commission may also on its own motion dismiss an application subject to s.587 of the Act.
Section 587 of the Act provides 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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(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 and Conclusion
On conclusion of the noncompliance proceedings, having considered the failure of Miss Skiadas to attend the mention/directions hearing, comply with directions, respond to communication from the Commission, attend the noncompliance hearing and explain her failure to comply or discontinue, I am satisfied that the application for a remedy for an unfair dismissal should be dismissed for want of prosecution.
Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
Had ANZ not made a request to dismiss, the Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted because of failure by Miss Skiadas to comply with directions or engage with the Commission. In this instance Miss Skiadas has not attended either hearing, nor complied with the directions. I am also satisfied that through those attempts to contact her, Miss Skiadas was on notice of the risk that failure to contact the Commission, that her matter may be dismissed.
On this basis, the application is dismissed for failure to comply with the Commission’s directions or attend hearings pursuant to s.399A. Further due to her failure to engage with the Commission her application cannot be prosecuted. Pursuant to s.587 of the Act, the application is dismissed for want of prosecution.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR762068.
Printed by authority of the Commonwealth Government Printer
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