Jessie Rickard v The Salvation Army
[2023] FWC 2725
•18 OCTOBER 2023
| [2023] FWC 2725 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessie Rickard
v
The Salvation Army
(U2023/8344)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 18 OCTOBER 2023 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.
On 3 September 2023, Ms Jessie Rickard (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with The Salvation Army (the Respondent) was unfair. The Respondent raised two jurisdictional objections, those being that the Application is out of time and that the Applicant was not dismissed.
The matter was allocated to my Chambers on 11 September 2023 following which, directions were issued to the parties by my Chambers on 12 September 2023 setting down a timetable for the filing of material by both parties. The directions issued to the parties on 12 September 2023 relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[1] The submissions must include all relevant facts, dates and incidents to support all claims made.
[2] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[3] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Applicant failed to file her material in relation to the jurisdictional issue of whether to extend the 21-day filing time for the application on or by close of business 19 September 2023 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 20 September 2023 noting that she had failed to file her material as required by the directions and that unless this material was filed by close of business on 20 September 2023 a non-compliance hearing would be listed to which she would be required to attend. The Applicant did not respond to the email sent to her on 20 September 2023 or file any material.
The matter was then listed for an on-line non-compliance hearing at 10.00am on 25 September 2023. Prior to commencement of the hearing my Associate called the Applicant, however the Applicant did not answer the calls made by my Associate or attend the non-compliance hearing. The non-compliance hearing proceeded and was attended by Ms Leadbeatter, Workplace Relations Manager and Ms Lopez, Human Resources Business Partner, for the Respondent. Ms Leadbeatter made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s 399A(1) of the Act.
Correspondence was sent by my Chambers on 25 September 2023 to the Applicant following the non-compliance hearing advising her that the Respondent had made an application pursuant to s 399A(2) of the Act that her application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. Further, the Applicant was advised that separately to the s 399A application, I was also considering the dismissal of her application pursuant to s 587 of the Act. The Applicant was invited to provide submissions by close of business on Wednesday, 27 September 2023 as to why her application should not be dismissed. The Applicant was also advised that should she seek to be heard in relation to the s 399A application or the potential dismissal of her application under s 587 she should advise my Chambers. Otherwise, the matter would be dealt with on the papers.
On 26 September 2023, the Applicant filed materials in relation to the extension of time (EOT). The Applicant explained that the late filing of material was due to her being unable to access a computer or internet all the time to check her emails since her employment ended. As such, correspondence was sent to the Respondent by my Chambers on 26 September 2023 seeking advice as to whether, based on the Applicant’s response, the Respondent sought to say anything in reply. On 26 September 2023, the Respondent advised my Chambers that it pressed its application under s 399A and made submissions that it seemed unlikely that the Applicant did not have access to a computer or internet from the time the directions were issued but gained access the same day they were notified of the Respondent’s application to dismiss the application.
Parties were advised by my Chambers on 27 September 2023, that having regard to the belated filing of materials by the Applicant on the EOT and the limited submissions filed by both parties in relation to the s 399A application, I declined to grant the s 399A application of the Respondent. Given that the Respondent had also raised a jurisdictional objection that the Applicant was not dismissed, the parties were advised that fresh directions would be issued allowing the Respondent to file any material in relation to that objection as well as in reply to the material filed by the Applicant on the EOT issue. The Applicant was advised that she would then be afforded an opportunity to file material in reply on the ‘no dismissal’ objection. The Applicant was also put on notice that should she fail to comply with any further directions issued by the Commission without reasonable cause, her application would be liable to be dismissed.
Further directions were issued to the parties by my Chambers on 27 September 2023 and a revised hearing date of 16 October 2023 was set. The Respondent filed its materials on 4 October 2023 in relation to the jurisdictional objection that the Applicant was not dismissed and in reply to the Applicant on the EOT issue in accordance with the directions. The Applicant failed to file material on or by the close of business on 11 October 2023 in relation to the jurisdictional objection that she was not dismissed.
On 13 October 2023, a digital court book was sent to the parties and immediately prior to the Hearing on 16 October 2023, my Associate called the Applicant but she did not answer, and my Associate then left a message advising the Applicant to call Chambers or alternatively to join the Teams link for the Hearing. The Applicant did not return my Associate’s call and did not join the Hearing. The Hearing was attended by Ms Leadbeatter, Workplace Relations Manager and Ms Hunt, Senior Workplace Relations Manager, for the Respondent. Ms Leadbeatter made another oral application at the hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s 399A(1) of the Act.
Following the hearing on 16 October 2023, further correspondence was sent by my Chambers to the Applicant advising her that the Respondent had made an application pursuant to s 399A(2) of the Act that her application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. It was also noted that in the previous correspondence issued to her on 27 September 2023 it was foreshadowed that should the Applicant fail to comply with any further directions her application would be liable to be dismissed. The Applicant was also advised that separately to the s 399A application, I was also considering the dismissal of her application pursuant to s 587 of the Act. The Applicant was invited to provide submissions by 12.00pm Wednesday, 18 October 2023 as to why her application should not be dismissed. The Applicant was also advised that should she seek to be heard in relation to the s 399A application or the potential dismissal of her application under s 587 she should advise my Chambers. Otherwise, the matter would be dealt with on the papers. The Applicant did not respond to the email sent to her on 16 October 2023 or file any material.
Consideration
Turning now to whether the application should be dismissed, s 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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss her application for an unfair dismissal remedy by 12.00pm on 18 October 2023, I will determine the application on the papers.
The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. She has done so by failing to attend two hearings listed by the Commission to which she was required to attend, those being the non-compliance hearing on 25 September 2023 and determinative conference/hearing listed for 16 October 2023. Furthermore, she failed to file her materials in relation to the EOT accordance with the original directions by 19 September 2023 and also failed to file any material in relation to the ‘no dismissal’ jurisdictional objection by 11 October 2023. No extension of time has been sought by the Applicant in relation to her non-compliance with the directions. Nor has she provided an explanation for her further non-compliance despite being afforded an opportunity to do so.
In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
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