Julie-Ann Bird v Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations

[2015] FWC 8228

[2015] FWC 8228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Julie-Ann Bird
v
Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations
(U2015/9347)

COMMISSIONER HAMPTON ADELAIDE, 1 DECEMBER 2015

Application for relief from unfair dismissal – non-compliance with directions - s.399A application made by employer - no reasonable explanation – no intention to proceed - discretion exercised - unfair dismissal application dismissed – liberty to apply on costs.

[1] On 15 July 2014, Ms Julie-Ann Bird (the Applicant) made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act). Ms Bird was apparently dismissed from her employment with the Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations (the RFDS) on 25 June 2015.

[2] The unfair dismissal application was listed for conciliation with a Fair Work Commission conciliator on 5 August 2015. The matter was not resolved and as a result the matter was subsequently allocated to me for determination.

[3] The unfair dismissal application was the subject of a telephone directions conference before the Commission on 3 September 2015. Representatives of both parties participated in the conference and the matter was set down for a hearing with associated directions being issued. Those directions required, amongst other matters, Ms Bird to file an outline of submissions and any evidentiary material on or before 2 November 2015.

[4] Following a Member Assisted Conciliation (MAC) conducted on 12 October by Gregory C, the applicant’s then legal representative ceased to act. I note that the MAC was conducted in parallel with the process of compliance with the directions leading to the hearing and that this was expressly confirmed in those directions.

[5] Ms Bird’s submissions and evidentiary material was not filed on 2 November 2015 as required. Due to certain personal circumstances, the Commission subsequently granted an extension of seven days for the Applicant to file her materials. Notwithstanding that extension, Ms Bird did not, and has not, complied with the directions.

[6] An application to dismiss the unfair dismissal application, pursuant to s.399A, and a related application for costs pursuant to s.400A of the Act, were filed by solicitors acting for the RFDS on 11 November 2015. The s.399A application relied upon the history of the matter and the non-compliance of Ms Bird with the directions issued by the Commission.

[7] On 13 November 2015, further directions were issued by the Commission, directing Ms Bird to provide reasons as to why her unfair dismissal application should not be dismissed and why costs should not be awarded against her. These submissions were to be filed and served by no later than 25 November 2015, and in the absence of any relevant submissions, the matter would be dealt with without further notice or hearing.

[8] Section 399A of the FW 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.”

[9] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 1

[10] On the same day that the further directions were issued by the Commission, Ms Bird wrote (via email) to the RFDS’s solicitors, via my Chambers, advising that she wanted to reach a mutual agreement with their client and sought that they contact her to further discuss that prospect. That email also set out certain alleged personal circumstances impacting upon Ms Bird. An email exchange then ensued between the Applicant and the solicitors for the RFDS.

[11] In the lead up to the date that Ms Bird was due to provide her response to the s.399A application (25 November 2015), my Chambers confirmed to the applicant that despite the recent indication of a desire to reach a settlement, any submission in response to that application would need to be lodged as directed. No submissions have been lodged with the Commission by or on behalf of the applicant.

[12] Despite that situation, and given the uncertainty surrounding the status of discussions between the parties, I instructed my Associate to write to Ms Bird to seek confirmation in writing as to her intentions. Ms Bird shortly thereafter telephoned my Associate and advised that she had “reached a resolution” with the RFDS, and the matter would not be proceeding. This telephone advice was to be followed up in writing, which has not occurred.

[13] On 27 November 2015, the solicitors for the RFDS wrote to the Commission to advise that they had not received any confirmation in writing that the applicant had withdrawn her matter and seeking that the Commission determine its s.399A application.

[14] Accordingly, as advised previously to the parties, I will now determine the s.399A application on the basis of the material presently before the Commission.

[15] The directions issued by the Commission on 13 November 2015 are directions relating to the unfair dismissal matter as contemplated by s.399A(1)(b) of the FW Act. I am satisfied that Ms Bird has failed to comply with those directions.

[16] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[17] Accordingly, pursuant to s.399A(1) of the FW Act, the Commission may dismiss the unfair dismissal application if satisfied that Ms Bird has unreasonably failed to comply with the directions.

[18] Ms Bird did not file any material in response to the s.399A application, and has not provided any satisfactory reason for non-compliance with the relevant directions.

[19] I am satisfied that Ms Bird has unreasonably failed to comply with a direction of the Commission in relation to the unfair dismissal matter. Ms Bird has also been provided with a reasonable opportunity to advance her case in relation to the unfair dismissal application, and the RFDS s.399A application, and has not done so. Indeed, and in any event, the most recent indication is that Ms Bird does not intend to proceed with the matter. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[20] Accordingly, Ms Bird’s unfair dismissal application is to be dismissed. An order 2 to that end is being issued in conjunction with this decision.

[21] I have not dealt with the RFDS application for costs at this point. I have adopted this course of action as the status of any discussions between the parties is not clear and the RFDS may wish to rely upon communications and events that were undertaken on a without prejudice basis (except as to costs). Further, given how the events have unfolded, other than a broad summary of events provided with the costs application, the RFDS has not had the opportunity to provide evidence or submissions in support thereof.

[22] In that context, if the RFDS intends to proceed with its s.400A costs application, it should provide any supporting evidence in the form of a sworn statement. In that event, I will make appropriate arrangements for Ms Bird to be given an opportunity to provide any response before determining that matter.

[23] Liberty to apply is also granted.

COMMISSIONER

 1   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

 2   PR574554.

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<Price code A, PR574493>