Karalyn Greentree v Woolworths Limited

[2015] FWC 8926

[2015] FWC 8926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karalyn Greentree
v
Woolworths Limited
(U2015/9393)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Karalyn Greentree alleged that the termination of her employment by Woolworths Limited was unfair.

[2] The matter was referred to conciliation on 14 September 2015 and an agreement was reached subject to a cooling off period. On 15 September 2015, Ms Greentree sent an email to the conciliator asking him to call her. She did not indicate in that email what she was calling about. On 18 September 2015, Ms Greentree sent another email in which she indicated that she was “not entering into anything.” Ms Greentree did not send either of these emails to Woolworths. On 18 September 2015, the conciliator sent Ms Greentree an email asking if she was exercising her rights under the cooling off period and on 23 September 2015 Ms Greentree advised that she was.

[3] On 12 October 2015, directions were issued to Ms Greentree to file material in support of her application by 2 November 2015. On 13 October 2015, Woolworths emailed the Commission and advised that Ms Greentree had not signed the terms of settlement and asked if Ms Greentree was still pursuing her claim.

[4] Ms Greentree did not comply with the directions issued on 12 October 2015 and did not seek an extension of time.

[5] On 15 October 2015, Woolworths contacted the Fair Work Commission and advised that the matter had been settled and queried whether Ms Greentree had exercised her cooling off rights within three days.

[6] On 6 November 2015, the matter was sent to a noncompliance hearing and Ms Greentree refused to participate. At that noncompliance hearing, Woolworths made an oral application under section 399A of the Fair Work Act 2009 to have Ms Greentree’s application dismissed and I waived compliance with the Fair Work Commission Rules 2013 and did not require Woolworths to file a written application.

[7] Ms Greentree was advised of the application on 6 November 2015 and directed to file material in opposition to the application by 16 November 2015.

[8] On 16 November 2015, Ms Greentree provided a medical certificate which advised she was a carer for her sick son and she attended the surgery on two occasions in October and November. She advised that she had had a lot to do including looking for work. She advised that she wanted her application to proceed.

[9] Woolworths were directed to file material in support of its application by 11 December 2015.

[10] It is not clear from the material filed by Woolworths whether it was submitted that Ms Greentree’s application should be dismissed because the matter was settled or simply because she did not comply with the directions issued. It submitted that Ms Greentree’s current circumstances are not sufficient to prevent her from complying with directions.

[11] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable noncompliance with directions of the Commission.¹

[12] 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

[13] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited³.

[14] 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 noncompliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;



• continuing noncompliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[15] While not an exhaustive list 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

[16] This matter has an unfortunate history given Ms Greentree was dismissed in June 2015. The conciliation was adjourned on a number of occasions. An agreement was made at the conciliation which was subject to a cooling off period. Unfortunately Ms Greentree did not clearly communicate with either the Commission or Woolworths that she wished to exercise her rights under the cooling off period prior to the expiry of the cooling off period.

[17] Ms Greentree has taken no steps since the conciliation to progress the matter. She has not filed any material in support of her application and she did not contact the Commission prior to her compliance date to seek an extension of time. I agree with Woolworths that her reasons for not complying are inadequate. There is no evidence on which I could conclude that her son’s illness prevented her from lodging her material. That she was looking for other work is the situation facing all dismissed employees. Despite those obligations most employees manage to file their material on time or request an extension of time prior to the date for compliance. I find Ms Greentree’s reasons for not complying with the direction to be unreasonable. However the decision to dismiss an application is discretionary. I am not prepared to exercise my discretion to dismiss the application at this time as Ms Greentree has not repeatedly failed to comply with directions. I am however not prepared to dismiss Woolworth’s application at this time.

[18] I will direct Ms Greentree to file material in support of her application by 8 January 2016. If she fails to comply with this direction, I will dismiss Ms Greentree’s application without further reference to her. Ms Greentree is able to apply for an extension of time to file material but such an application must be made prior to the compliance date and must set out the substantive grounds on which such an application is made.

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 PR 956665

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