Josephine Barcatta v Independence Australia

[2021] FWC 3244

[2021] FWC 3244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Josephine Barcatta
v
Independence Australia
(C2020/8301)

COMMISSIONER MCKINNON MELBOURNE, 4 JUNE 2021

General protections dispute involving dismissal – application to dismiss under s.587.

[1] On 11 November 2020, Josephine Barcatta applied to the Commission to deal with a general protections dispute involving dismissal. Her former employer, Independence Australia Group Ltd, objects to the application. It says Ms Barcatta resigned and was not dismissed.

[2] On 26 April 2021, and despite Ms Barcatta’s repeated non-compliance with directions of the Commission, I decided not to dismiss the application under s.587(1) of the Fair Work Act 2009. This followed an undertaking on 30 March 2021 from Ms Barcatta that she would give the Commission and Independence Australia timely notice if further difficulties complying with the Commission’s directions arose.

[3] Directions were then issued on 27 April 2021 for the further conduct of the proceeding. Independence Australia filed documents in support of its jurisdictional objection on 11 May 2021 as required. Ms Barcatta was due to file her documents in relation to the jurisdictional objection by 25 May 2021. No documents were filed and Ms Barcatta did not notify the Commission or Independence Australia of any difficulty complying with the directions.

[4] On 26 May 2021, the Commission sent an email to Ms Barcatta about her failure to file documents the previous day. In the email, Ms Barcatta’s urgent response to the failure to comply with directions was sought. Ms Barcatta was also advised that her application may be dismissed. Ms Barcatta has not responded to the email.

[5] A non-compliance hearing was held on 4 June 2021. Ms Barcatta did not appear at the hearing and did not notify the Commission that she had any difficulties attending or participating in the hearing.

[6] The position now is that Ms Barcatta has not filed submissions or a witness statement in response to Independence Australia’s jurisdictional objection, other than what is stated in her application form and an email of 17 March 2021. This is despite attempts to elicit Ms Barcatta’s evidentiary case since directions were first issued on 24 December 2020. I previously described the merits of Ms Barcatta’s case as ‘not strong’ on the face of the record. 1 In this context, the absence of evidence in contradiction to the case filed by Independence Australia makes it likely that the jurisdictional objection will succeed.

[7] Since April 2021, Independence Australia has incurred additional costs in responding to the application. It is not reasonable to expect Independence Australia to continue to incur costs in the matter in circumstances where Ms Barcatta is not taking reasonable steps to pursue her claim.

[8] It may be that Ms Barcatta’s personal circumstances have made her recent participation in the proceeding difficult. Concerns of this kind can usually be overcome by adjustments to the hearing timetable, as has occurred in this case on at least three occasions.

[9] Despite the undertaking given on 30 March 2021, Ms Barcatta has not explained why she did not file documents as required on 25 May 2021 and why she did not attend the non-compliance hearing on 4 June 2021. Due to the history of non-compliance, I am not satisfied that Ms Barcatta is likely to comply with further directions of the Commission or provide timely notice of difficulties in that regard so that reasonable adjustments can be made.

[10] In the circumstances, and on balance, it is appropriate that the application now be dismissed for want of prosecution under section 587 of the Act.

[11] The application is dismissed.

COMMISSIONER

Appearances:

No appearance for the Applicant.
R Davern for the Respondent.

Hearing details:

2021.
Melbourne, by telephone:
June 4.

Printed by authority of the Commonwealth Government Printer

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 1   Barcatta v Independence Australia Group Ltd[2021] FWC 2291