Karen Dalla-libera v The Vines Medical Centre T/A the Vines Medical Centre Pty Ltd

[2019] FWC 4147

[2019] FWC 4147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Dalla-libera
v
The Vines Medical Centre T/A The Vines Medical Centre Pty Ltd
(U2019/1768)

DEPUTY PRESIDENT BINET PERTH, 18 JUNE 2019

Application for an unfair dismissal remedy – application dismissed – failure to comply with directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 19 February 2019, Ms Karen Dalla-libera (Dalla-libera) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by The Vines Medical Centre T/A The Vines Medical Centre Pty Ltd (The Vines).

[2] Ms Dalla-libera advised that her employment with the Vines commenced on 31 July 2018 and that she was notified of her dismissal on 17 February 2019.

[3] On 17 April 2019, The Vines filed a response to the Application confirming that Ms Dalla-libera commenced employment with The Vines on 31 July 2018 and was dismissed on 17 February 2019. The response asserts that at the time of Ms Della-libera’s dismissal The Vines employed fewer than 15 employees.

[4] The Vines’ response raised a jurisdictional objection to the Application, namely that Ms Dalla-libera has not completed the minimum employment period.

[5] The minimum employment period if the employer is a small business employer is one year. 1 A business is a small business employer if it employed less than 15 employees immediately before the dismissal or at the time notice of dismissal was given, whichever occurred earlier.2

[6] On 13 May 2019 the parties were issued with directions which required The Vines to file and serve by 4pm on 21 May 2019 submissions and evidence in relation to the jurisdictional objection (Directions).

[7] On 22 May 2019 The Vines filed submissions in response to the Directions. The Directions then required Ms Dalla-libera to file her submissions regarding the jurisdictional objection by 28 May 2019.

[8] On 29 May 2019, Chambers emailed the parties noting that Ms Della-libera had not filed the materials as required. The email provided Ms Della-libera till 4pm on 31 May 2019 to file materials in support of the matter and a detailed explanation as to why she had not filed by 4pm on 28 May 2019.

[9] On 31 May 2019 Ms Della-libera filed a 2 page statement. The statement did not address the Jurisdictional Objection. Ms Della-libera did not comply with the balance of the Directions. Chambers contacted Ms Della-libera and left a voicemail message. Ms Della-libera later that afternoon returned the call. Ms Della-libera’s attention was drawn to the requirement to complete a minimum employment period and her failure to address this in the document she filed with Chambers.

[10] On 4 June 2019 Ms Della-libera was granted a further extension to provide reasons why she had not filed her materials in accordance with the Directions. She was also provided with template materials to assist her to address the Jurisdictional Objection. She was directed to file and serve these materials by 4pm on 6 June 2019. She did not file the explanation nor the materials she was directed on 4 June 2019 to file by 6 June 2019.

[11] On 7 June 2019, The Vines filed with Chambers and served on Ms Della-libera an application for the matter to be dismissed pursuant to sections 399A of the FW Act. The Vines submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms Della-libera unreasonably failed to comply with a direction of the FWC when she failed to file her materials in accordance with the Directions.

[12] On the morning of 7 June 2019 Ms Della-libera was invited to file submissions as to why the Application should not be dismissed by 12pm on 11 June 2019. As at the date of this decision she has not filed any submissions as to why the Application should not be dismissed.

[13] Section 399A of the FW Act provides:

“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.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

(2) This section does not limit when the FWC may dismiss an application.”

[14] Section 587(1) of the Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.”

[15] On her own evidence, Ms Della-libera has been employed for less than 12 months. Ms Della-libera has not contested, and there is no evidence before me to suggest, that The Vines is not a small business employer for the purposes of the FW Act. I am therefore satisfied that the Application has no reasonable prospects of success.

[16] Ms Della-libera failed to file all the materials she was directed to file by the dates specified in the Directions or within the dates specified in the extension granted to her. The material which she eventually filed did not adequately address the Jurisdictional Objection. She failed to seek an extension to file her materials or provide a reason for failing to do so. She then failed to file the materials which she was directed to file on 4 June 2019. I am satisfied that she has failed to comply with directions of the FWC relating to this Application.

[17] On the Dismissal Application of The Vines and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR709371] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709370>

 1   Fair Work Act 2009 (Cth) s 383.

 2   Ibid s 23.