Jenna Lambert v Youi Pty Ltd T/A Youi Insurance

[2016] FWC 1518

[2016] FWC 1518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenna Lambert
v
YOUI Pty Ltd T/A YOUI Insurance
(U2015/12308)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 MARCH 2016

Application for relief from unfair dismissal.

[1] On 16 October 2015, Ms Jenna Lambert made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Lambert’s employment had been terminated by YOUI Pty Ltd on 25 September 2015.

[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 Lambert was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 14 December 2015.

[4] Ms Lambert did not comply with this direction.

[5] On 15 December 2015, a telephone call was made to Ms Lambert’s mother, who stated that Ms Lambert has had issues with her phone and that she would pass on message to Ms Lambert asking her to contact the Fair Work Commission regarding her submissions that were due on 14 December 2015. Later that same day a telephone call was made to Ms Lambert and a voicemail was left regarding her submissions that were due on 14 December 2015.

[6] On 16 December 2015, a telephone call was made to Ms Lambert’s mother, who stated that she would contact Ms Lambert regarding the non compliance hearing to be listed for 18 December 2015.

[7] The matter was listed for a non compliance hearing before Commissioner Roe on 18 December 2015.

[8] On 18 December 2015, both parties participated in the non compliance hearing. Ms Lambert submitted that she had been unwell and in hospital and as a result has been unable to file her submissions. YOUI Pty Ltd accepted Ms Lambert’s submission. Commissioner Roe amended directions so that Ms Lambert submissions were due by noon, 24 December 2015.

[9] On 31 December 2015, a telephone call was made to Ms Lambert to follow up on the submissions that were due on 24 December 2015, a voicemail was left.

[10] On 4 January 2016, a telephone call was made to Ms Lambert regarding her overdue submissions, a voicemail was left. Later that same day an email was sent to Ms Lambert regarding her overdue submissions, requesting that she contact the Commission as a matter of urgency and stating that if she did not lodge submission she may run the risk of her matter being dismissed.

[11] The matter was listed for a non compliance hearing before Commissioner Johns on 8 January 2016.

[12] Ms Lambert did not attend the non compliance hearing. YOUI Pty Ltd made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Lambert had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted YOUI Pty Ltd’s oral application.

[13] On 8 January 2016, Ms Lambert was sent correspondence informing her of YOUI Pty Ltd’s section 399A application. Ms Lambert was directed to file submissions and other documentary material in respect of YOUI Pty Ltd’s application by 4:00pm, on 15 January 2016. Ms Lambert was advised that if she failed to comply with this direction, her application would be dismissed.

[14] On 10 January 2016, Ms Lambert sent an email to the Commission, confirming receipt of the correspondence sent on 8 January 2016. Ms Lambert said that she would provide the submissions prior to 15 January 2016 along with a letter and certificate from her doctor explaining why she failed to comply with directions.

[15] On 18 January 2016, Ms Lambert emailed a copy of her medical certificate to the Commission. It advised that she was unfit for work from 7 October 2015 until 30 June 2016. The certificate stated that this was a temporary exacerbation of a permanent condition.

[16] On 20 January 2016, the Commission sent correspondence to Ms Lambert stating that I required her to provide a letter from her doctor explaining how any medical condition she may have has prevented her from lodging her documents and from responding to repeated attempts by the Commission to contact her. Ms Lambert was required to provide the letter by 4:00pm, 27 January 2016.

[17] On 25 January 2016, Ms Lambert sent an email to the Commission to confirm receipt of correspondence sent on 20 January 2016. Later that same day Ms Lambert sent an email to the Commission stating ‘the earliest time I could get in with my doctor is 9.10am on Thursday 28th January to request this letter. I will have this emailed straight to you after my appointment on Thirsday’.

[18] On 25 January 2016, the Commission sent correspondence to Ms Lambert requesting that she please ensure that the letter is provided to chambers by 4:00pm, 28 January 2016.

[19] On 28 January 2016, Ms Lambert emailed a copy of a letter from her doctor to the Commission which advised that she had a medical condition and was unable to attend to her original court date in February 2016.

[20] On 5 February 2016, YOUI Pty Ltd filed an objection to the application and sought the dismissal of Ms Lambert’s application. YOUI Pty Ltd based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the non compliance hearing.

[21] On 17 February 2016, the Commission sent correspondence to YOUI Pty Ltd requesting that they provide the evidence referred to 12.2 of its submissions by noon 24 February 2016.

[22] On 26 February 2016, YOUI Pty Ltd sent correspondence to the Commission including the requested evidence referred to in 12.2 of its submissions.

[23] On 29 February 2016, the Commission sent correspondence to Ms Lambert referring to the submissions of the respondent, served on her by email on 5 February 2016 and 26 February 2016, requesting that she file and serve her response with the Commission by close of business 7 March 2016.

[24] Ms Lambert did not file any material with the Commission.

[25] Section 399A of the Act provides as follows:

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.

....
(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.

[26] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[27] As Ms Lambert did not file any material, apart from her medical certificate, in opposition to the application to dismiss, I will determine the application on the papers.

[28] YOUI Pty Ltd submitted that the medical certificate provided by Ms Lambert did not provide reasons as to why Ms Lambert had failed to comply with earlier directions. The medical certificate merely said she was not able to attend a hearing in February. It further submitted that it had monitored Ms Lambert’s social media activity since she lodged her unfair dismissal claim. It provided a statutory declaration exhibiting exerpts from her social media activities from 14 December 2015 to late January 2016. It said those images support its contention that Ms Lambert had during this period been able to travel overseas and attend parties and events. Ms Lambert was provided with an opportunity to respond to this evidence and submissions but she did not.

[29] The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[30] There are of course circumstances where an employee is medically incapable of dealing with an unfair dismissal application but able to undertake other activities. However in the absence of any explanation about why she could undertake the activities evident from her social media activity whilst she was unable to comply with Commission directions leads to the conclusion that her non compliance was unreasonable. The decision to dismiss an application is discretionary. It is now some 6 months since Ms Lambert was dismissed and she has taken no steps to prosecute her claim. In those circumstances, I will exercise my discretion and dismiss Ms Lambert’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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