Julie Palm v Sydney Night Patrol & Inquiry Co Pty Ltd T/A SNP Security

[2016] FWC 1190

[2016] FWC 1190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Palm
v
Sydney Night Patrol & Inquiry Co Pty Ltd T/A SNP Security
(U2015/13854)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 24 FEBRUARY 2016

Application for relief from unfair dismissal – application to dismiss under s.399A for non-compliance – application to dismiss not granted.

[1] On 27 October 2015 Mrs Julie Palm made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mrs Palm’s employment was terminated by Sydney Night Patrol & Inquiry Co Pty Ltd T/A SNP Security (SNP – the Respondent) on 14 October 2015 for serious misconduct.

[2] A telephone conciliation was held by one of the Fair Work Commission’s (the Commission) conciliators on 24 November 2015 but was unsuccessful in settling the matter, with the application referred to a member of the Commission for determination. Directions were subsequently issued by the Commission on 15 December 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the application, with the matter listed for hearing in Canberra on 9 March 2016.

[3] Mrs Palm failed to comply with those Directions. On 28 January 2016 the Commission convened a telephone hearing to consider the issue of non-compliance. At that hearing, Mrs Palm appeared on her own behalf, while Ms Tammy Iselt, SNP’s National Employee Relations Manager, appeared for SNP.

[4] At the telephone hearing, Mrs Palm stated that she was unable to comply with the Commission’s Directions for two main reasons. First, she was unable to afford to obtain legal advice and, second, her mobile phone service, through which she also received her emails, had been disconnected as she was unable to pay her mobile phone bill. In response to the latter contention, the Commission requested that Mrs Palm provide evidence to substantiate her claim that her mobile phone account had been disconnected. As to why Mrs Palm did not contact the Commission to advise of her circumstances, she indicated that she was busy looking for employment and that she was not aware of what to do in the circumstances.

[5] Also at the telephone hearing, Ms Iselt requested that the Commission exercise its powers to dismiss this matter pursuant to s.399A of the Act.

[6] 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.”

[7] In subsequent developments, on 4 February 2016 Mrs Palm’s representative, Mr Rana Abbas, forwarded a copy of an email sent to Mrs Palm on 3 February 2016 by Mr Morgan Kenny, the Assistant Store Manager at Vodafone’s Canberra City store. The email read as follows:

“As per our conversation, below are the details of when your account had an outgoing call bar placed on it.

O Bar applied: 25/11/2015 15:54

A Bar applied: 11/01/2016 16:04

Incoming calls within reactivated: 28/01/2016 12:48”

[8] The Commission contacted Mr Kenny on 23 February 2016 to clarify the practical effect of the bars referred to in his email as having been applied to Mrs Palm’s mobile phone account. Mr Kenny confirmed that as a result of both the O Bar and A Bar applied to Mrs Palm’s mobile phone account, Mrs Palm would have been unable to receive emails via her mobile phone internet service. Mr Kenny further advised that Mrs Palm would however have been able to access her emails via a wi-fi service.

[9] It is apparent that as a result of the bars, it is highly unlikely that Mrs Palm received the Commission’s Directions given the O bar was applied to her mobile phone account from late November 2015 which is prior to 15 December 2015 when those Directions were issued. I am satisfied that this constitutes an acceptable reason as to why Mrs Palm did not comply with the Commission’s Directions.

[10] Accordingly, the Directions issued on 15 December 2015 are set aside and the hearing date of 9 March 2016 will be vacated. Further, revised Directions and Notice of listing will be issued in the coming days.

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