Julie Raykos v Department of Human Services

[2015] FWC 8181

[2015] FWC 8181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Raykos
v
Department of Human Services
(U2015/5758)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 5 June 2015, Ms Julie Raykos made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Ms Raykos’s employment had been terminated by the Department of Human Services on 15 May 2015.

[2] The matter was the subject of conciliation, and the matter was resolved at conciliation and the file was closed.

[3] On 8 October 2015 the Department sent an email to the Commission advising that in principle settlement had been reached at conciliation but Ms Raykos had not responded to requests to sign the terms of settlement. In the absence of any contact from Ms Raykos indicating that she was pursuing the matter the Department asked that the file be closed.

[4] On 14 October 2015 the Department filed an application for the application to be closed. It did not indicate under what provision of the Act the application was being made. On the same day a message was left for Ms Raykos to contact the Commission.

[5] On 21 October 2015 I caused to be sent an email to the parties and advised that the Commission cannot close a file however if the Department wished to have the matter dismissed it should do so under the relevant provisions of the Act. At the same time directions were issued for Ms Raykos to file an outline of arguments, a statement of evidence and other documentary material she wished to rely on to support her application by noon, on Monday, 2 November 2015.

[6] Ms Raykos did not comply with this direction and the matter was listed for a non- compliance hearing before me on 6 November 2015. On 4 November 2015 the Commission left a voice mail message on Ms Raykos’s mobile phone and sent her a text message about the non-compliance hearing.

[7] Ms Raykos did not attend the non-compliance hearing. The Department made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Raykos had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted The Department’s oral application.

[8] On 6 November 2015, Ms Raykos was sent correspondence informing her of Department’s section 399A application. Ms Raykos was directed to file submissions and other documentary material in respect of the application by close of business, on 20 November 2015. Ms Raykos was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Raykos did not file any material with the Commission.

Consideration

[10] 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

[11] 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

[12] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited 3.

[13] 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
● continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[14] 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.

[15] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[16] As Ms Raykos did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] Ms Raykos had not made contact with the Commission since 29 June 2015. She has failed to respond to all attempts to contact her. When directions were issued for her to file material in support of her application she did not comply and she did not seek an extension of time to file. Ms Raykos has provided no explanation for her failure to comply. I conclude therefore that her non-compliance was unreasonable.

[18] The decision to dismiss an application is discretionary. The Act requires the Commission to afford both parties a fair go all round. Numerous attempts have been made to contact Ms Raykos and she has not responded. She shows no willingness to have her matter ready for a hearing. She has made no submission about why I should exercise my discretion in her favour. The Department is entitled to finality.

[19] Therefore Ms Raykos’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

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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