Jimmy Koleski v Hair Health & Beauty

[2016] FWC 1418

[2016] FWC 1418

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jimmy Koleski
v
Hair Health & Beauty
(U2015/15266)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2016

Application for relief from unfair dismissal - s.399A application dismissed.

[1] Mr Jimmy Koleski alleged that the termination of his employment by Hair Health and Beauty was unfair. Renito Pty Ltd trading as Hair Health and Beauty Professional (Renito) denied the allegations.

[2] On 19 January 2016, directions were issued to Mr Koleski to file material in support of his application. That material was due on 8 February 2016. On 21 January 2016, new directions were issued but the date of compliance did not change. The matter was listed for hearing on 6 and 7 April 2016.

[3] Mr Koleski did not file his material by the date set in the directions.

[4] On 11 February 2016, Mr Koleski was contacted by a member of the Commission’s staff and asked why he had not complied. He advised that he did not know he had to and said he did not have a computer. On the same day Mr Koleski filed an outline of argument and a witness statement. A copy was provided to Renito on the same day.

[5] On 12 February 2016, Renito applied under s.399A for Mr Koleski’s application to be dismissed because he had not filed his material in accordance with the directions.

[6] On 18 February 2016, Mr Koleski was sent a copy of the s.399A application and asked to respond to that application by 24 February 2016. In his response received on 19 February 2016, Mr Koleski advised that he did not have a computer at home and he complied with the direction that day. He said he had now downloaded the gmail app onto his phone so that he did not miss any emails from the Commission.

[7] On 1 March 2016, Renito filed material in support of its application. Much of its response goes to the merits of Mr Koleski’s unfair dismissal claim. It was submitted that Mr Koleski’s claim is without merit. It was stated that Mr Koleski had been using the same email address since he applied for this job. He was able to print out the material that was sent to him at that time and he was able to scan and return the signed forms. It was submitted therefore that the Commission should not accept his explanation.

Consideration

[8] 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

[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 Anon Riske Services Australia Limited³.

[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; and

● 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 in deciding whether to exercise my discretion to dismiss the application.

Consideration

[13] Even if I accepted that Mr Koleski knew the deadline for filing the material; failed to file the material in time; and did not make an application for an adjournment, I am unable to conclude that Mr Koleski had unreasonably failed to comply with the directions. Mr Koleski is unrepresented and once advised of his obligations he filed his material. Further, that Mr Koleski may have had access to a computer when he applied for the job and is using the same email address is not evidence that he has access to a computer now.

[14] Even if I had accepted that his non-compliance was unreasonable I would not have exercised my discretion to dismiss the application. Mr Koleski has not got a history of non-compliance. While Renito considers that Mr Koleski’s claim has no merit, there is a real dispute between the parties about whether Mr Koleski engaged in the alleged conduct. The evidence in this matter has not been tested. I do not consider that it would be fair for Mr Koleski’s failure to comply with the directions to be the reason he was denied the opportunity to have his claim heard and determined. Accordingly the s.399A application made by Renito is dismissed.

[15] I had earlier granted Renito an extension of time to file its material. The matter is listed for hearing on 6 and 7 April 2016. As advised with the notice of listing depending on the number of witnesses the number of hearing days listed may be reduced. The parties will be advised the week prior to the scheduled hearing.

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 PR956665.

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