Jeanette Hitaua v Woolworths Ltd

[2015] FWC 1405

[2015] FWC 1405

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeanette Hitaua
v
Woolworths Ltd
(U2014/14745)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Jeanette Hitaua alleged that her dismissal by Woolworths Ltd was unfair. Woolworths denied that the dismissal was unfair.

[2] A conciliation conference was scheduled to take place on 25 November 2014 but neither Ms Hitaua nor her representative participated.

[3] On 16 December 2014, directions were issued to Ms Hitaua to file material in support of her application by no later than noon on 19 January 2015.

[4] On 23 December 2014, Ms Hitaua’s representative filed a notice advising that it ceased to act for her.

[5] Ms Hitaua did not comply with the directions to file material and no application for an extension of time was made before the compliance date. She did however make an application that afternoon for an extension to time which was opposed by Woolworths. I granted Ms Hitaua an extension of time to file her material by 27 January 2015 and extended the time for Woolworths to file its material. Ms Hitaua did not comply with the directions and on 3 February 2015 Woolworths made an application to dismiss Ms Hitaua’s application under s.399A of the Fair Work Act 2009. Ms Hitaua was provided with a copy of that application and given to 13 February 2015 to reply to the application.

[6] The matter was listed for non compliance on 6 February 2015 and new directions were issued which required Ms Hitaua to file her material by 13 February 2015 and for Woolworths to file by 6 March 2015. Ms Hitaua was also required to file her response to the s.399A application by 13 February 2015.

[7] Ms Hitaua did comply with the direction to file her material but did not file any material in response to the s.399A application.

Consideration

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

[9] 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

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

[11] 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.

[12] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Conclusion

[13] I do not consider Ms Hitaua’s failure to participate in the conciliation weighs in favour of dismissing the application. Participation in conciliation is not mandatory and in any event Woolworths advised that Ms Hitaua, when contacted by the conciliator, told him that she had not heard from her union in relation to the conciliation.

[14] Ms Hitaua did not comply with the initial directions and while she should have made her application for an extension of time before the time for compliance, she did contact the Commission the same day. I do not accept the submissions of Woolworths that the explanation provided by Ms Hitaua was insufficient. Woolworths submitted that her reasons should not be considered exceptional circumstances. It further submitted that any medical condition is not out of the ordinary, unusual, special or uncommon. However these concepts and the concept of exceptional circumstances do not apply to s.399A. The relevant consideration under s.399A(1)(b) is whether the Commission is satisfied that the non compliance was unreasonable.

[15] I do not accept the submission that Ms Hitaua did not provide a reasonable explanation for her failure to comply. She was no longer represented; it would have been difficult to obtain advice over the Christmas/New Year period; and she was suffering stress.

[16] Woolworths submitted that it would have to incur costs in defending the matter as lawyers have been briefed. I do not regard this to be a relevant consideration. However these costs are not additional to the costs that would have been incurred had Ms Hitaua complied with the directions.

[17] Woolworths submitted that it should be abundantly clear to Ms Hitaua that her claim had no reasonable prospects of success because her representative had advised her to discontinue the matter. I am unable to accept this submission as all the material has not been filed and in any event there is no application to dismiss the application on that ground before me.

[18] Ms Hitaua did not comply with the further directions and did not seek an extension of time prior to the compliance date.

[19] At the non compliance hearing Ms Hitaua advised that she did not receive the email as she had changed her email address. As a result she did not know of the compliance date and Ms Hitaua was given a further extension of time and she complied with that. However she did not respond to the s.399A application.

[20] Despite this, I do not intend dismissing Ms Hitaua’s application. Ms Hitaua’s conduct displays a lack of regard for her obligations to the Commission and to Woolworths. However I do not consider that her conduct exhibits an unwillingness or inability to proceed with her application. Ms Hitaua’s initial non compliance was understandable and her later non compliance was explained by her change of email address. A lay person, finding herself without the representation she had arranged, is in a difficult position particularly when notified just before Christmas that she must either find new representation or represent herself. Further, while she had an obligation to advise the Commission of her change of email address she did not deliberately ignore the directions of the Commission.

[21]
Therefore s.399A application is dismissed.

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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