Karanfilovski v JBS Australia Pty Limited
[2016] FWC 549
•5 February 2016
[2016] FWC 549
DECISION
Fair Work Act 2009 s.394—Unfair dismissal Slobodan Karanfilovski v JBS Australia Pty Limited (U2015/13721) DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 FEBRUARY 2016 Application for relief from unfair dismissal. [1] On 19 October 2015, Mr Slobodan Karanfilovski made an application for remedy for
unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Karanfilovski’s
employment had been terminated by JBS Australia Pty Limited on 9 October 2015.
[2] The matter was the subject of conciliation, however, the matter was not resolved.
Consequently, directions were issued and the matter was listed for hearing.
[3] Mr Karanfilovski was directed to file an outline of submissions, any witness
statements and other documentary material he wished to rely on by noon, on 7 December
2015.
[4] After business hours on 7 December 2015, Mr John Bingham, of Limestone Law, filed
a Notice of Representative Commencing to Act for Mr Karanfilovski. Mr Bingham said he
was seeking instructions from Mr Karanfilovski and expected to make an application for an
extension of time for the filing of Mr Karanfilovski’s material.
[5] On 8 December 2015, Mr Bingham emailed the Fair Work Commission, formally
seeking an extension of time to file material to 28 December 2015. Mr Bingham sought the
extension on the basis that his firm were instructed by telephone on 26 November 2015 and
had not had time to fully consider Mr Karanfilovski’s documents.
[6] On 10 December 2015, JBS emailed the Commission advising that it objected to an
extension of time being granted to Mr Karanfilovski to file his material. It submitted that Mr
Karanfilovski had had enough time to lodge his submissions.
[7] A further period of time was granted and Mr Karanfilovski was required to file his
material by 21 December 2015.
[8] Mr Karanfilovski did not comply with this direction.
[2016] FWC 549
[9] On 4 January 2016, JBS filed an objection to the application and sought the dismissal
of Mr Karanfilovski’s application. JBS based their objection on the ground that Mr
Karanfilovski had failed to comply with the directions of the Commission. I accepted this as
an application to dismiss under section 399A of the Act.
[10] On 5 January 2016, Mr Bingham again wrote to the Commission, seeking a further
extension of time for Mr Karanfilovski to file his material. Mr Bingham advised the basis of
the request was representative error due to the Christmas/New Year close down period. Mr
Bingham submitted that an extension to 7 January 2016 would not affect the hearing date and
JBS could be given a suitable extension as well.
[11] I refused the request for an extension of time.
[12] On 5 January 2016, Mr Karanfilovski and Mr Bingham were sent correspondence
informing them of JBS’s section 399A application. Mr Karanfilovski was directed to file
submissions and other documentary material, including any relevant medical certificates, in
respect of JBS’s application by close of business, on 15 January 2016. Mr Karanfilovski was
advised that if he failed to comply with this direction, his application would be dismissed.
[13] On 12 January 2016, Mr Bingham filed two witness statements on behalf of Mr
Karanfilovski. These related to the application for unfair dismissal remedy.
[14] On 14 January 2016, Mr Bingham filed an outline of submissions and documentary
evidence in relation to the application for unfair dismissal remedy.
[15] On 15 January 2016, Mr Bingham filed material in response to JBS’s application to
dismiss under section 399A of the Act. Mr Bingham submitted that all directions issued by
the Commission have been fully complied with, albeit late. Mr Bingham submitted that the
reasons for the failure to file on time pertained to his own personal illness and he provided
documentary evidence to support his submission.
[16] Mr Bingham submitted that Mr Karanfilovski’s matter enjoys reasonable prospects of
success and is seeking reinstatement to his former position. Mr Bingham further submitted
that JBS has not indicated how it suffered any prejudice as a result of the delay in Mr
Karanfilovski’s material being filed. Mr Bingham submitted that the material which has been
filed to date is comprehensive and is of assistance to the Commission and JBS in narrowing
the issues in dispute.
[17] On 19 January 2016, I caused directions to be sent to JBS that it file its material in
reply to Mr Bingham’s submissions opposing dismissal of the application, by 4.00pm, 25
January 2016. I further extended the time for the Respondent to file its material in opposition
to the substantive application to noon on 1 February 2016.
[18] JBS did not file any material in reply.
[2016] FWC 549
Conclusion
[19] 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. [20] 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
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the Commission.
[21] 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
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where there is an unreasonable act or omission by the applicant.”
[22] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk
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Services Australia Limited . [23] 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;
[2016] FWC 549
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. [24] 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.
[25] I am not satisfied that Mr Karanfilovski has unreasonably failed to comply with a
direction of the Commission. He has engaged a representative, Mr Bingham, to act on his
behalf. Due to Mr Bingham’s illness, the material was not filed on time. Mr Bingham
provided documentary evidence of his illness. Extensions of time were sought, albeit after the
due date for filing of material. However, the material was ultimately filed. In these
circumstances, I will dismiss JBS’s section 399A application. An order giving effect to this
decision will be issued today.
[26] Mr Bingham requested that the order not be published because his submissions contain
confidential personal information. Apart from a reference to Mr Bingham’s illness, the
decision does not disclose any of the personal information referred to in the submissions.
Consequently, I do not consider that there is any reason that this decision and order not be
published.
DEPUTY PRESIDENT
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S.399A of the Fair Work Act 2009
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Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]
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PR 956665
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