Karen Linto v UWA Sport Pty Ltd

[2020] FWC 1746

[2020] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Linto
v
UWA Sport Pty Ltd
(U2018/3153)

COMMISSIONER WILLIAMS PERTH, 1 APRIL 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Ms Karen Linto (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 26 March 2018. The Respondent is UWA Sport Pty Ltd (the Respondent).

Background

[2] This application has a lengthy and detailed history and the below background is a summary and does not cover every interaction with the Fair Work Commission (Commission) or event occurred.

[3] The Respondent raised two jurisdictional objections to the application, namely that the Applicant was not dismissed (Dismissal at the end of the specified period of time, specified task or season), and that the application is out of time and has been lodged more than 21 days after the alleged dismissal took effect.

[4] The application was the subject of a conference with a Commission conciliator however the matter was not resolved and was referred for determination.

[5] A Notice of Listing containing directions was issued to the parties, setting the matter down for a jurisdiction hearing to determine the Respondent’s two jurisdictional objections on 15 June 2018. The directions required the Applicant to file her materials regarding the application being lodged out of the prescribed 21 days by noon, Friday 18 May 2018 and the Respondent by noon Monday, 28 May 2018. Also, the Applicant was to file her materials regarding no dismissal by noon Monday, 28 May 2018, and the Respondent noon Friday, 18 May 2018.

[6] The Respondent filed its materials required to be filed by noon Friday 18 May 2018. The Applicant did not.

[7] The Applicant was contacted on 21 May 2018 and a voice message was left reminding her of the requirement of filing her materials which were due on 18 May 2018.

[8] On 22 May 2018 an email was sent to the parties noting no materials had been received by the Applicant and if nothing was filed by close of business 22 May 2019, the matter would be listed for a Non-compliance Hearing on Friday, 25 May 2018.

[9] The matter proceeded to a Non-compliance Hearing on Friday, 25 May 2018, before Deputy President Colman. All parties attended and the Applicant was granted an extension to file her materials by 1 June 2018.

[10] On 28 May 2018, the Applicant requested a further extension by email, explaining she has severe anxiety and depression as a result of the dismissal and would be meeting with her councillor the next day and her doctor to obtain supporting medical evidence. She noted her appointment with a Psychologist was not until 12 June 2018, but hoped a supporting letter could also be provided sooner than this.

[11] Chambers received a Doctor’s certificate on 30 May 2018 stating:

“Karen is unable for medical reasons to complete her application for unfair dismissal by this Friday. She is currently battling severe depression and anxiety”

[12] This was followed up by a letter from a Clinical Psychiatrist which states in part:

“Karen sought therapy recently for chronic depression and anxiety triggered by the loss of her employment…these are currently very active and are significantly impacting her functional capacity…she is presently incapable of achieving this [file subs]”

[13] The hearing and directions were vacated on 1 June 2018.

[14] On 9 August 2018 the Commission contacted the Applicant by phone requesting a status update on her health and her ability to proceed with hearing. The call went unanswered and a voicemail message was left requesting a call back. The Applicant did not contact the Commission.

[15] Over seven weeks later, on 2 October 2018, the Commission contacted the Applicant by phone and email requesting an update. No response was received.

[16] Over five months later, on 18 March 2019, the Commission contacted the Applicant by phone requesting a status update on her health.

[17] The Applicant called the Commission back on 20 March 2019, advising she is “still not in a state to proceed to a hearing”.

[18] The Commission contacted the Applicant on 27 March 2019, by email requesting an update and medical certificate with “potential timeframe for when you will be ready to prepare and participate in a hearing”. No response was received.

[19] Over four months later, on 12 September 2019 the Commission attempted to phone the Applicant. A voice message was left requesting an update on her medical condition and for her to advise as to whether she intends to proceed with her application. The Commission requested the Applicant to return the call. The Applicant does not respond.

[20] The Commission again attempts to contact the Applicant on 16 September 2019, the call diverts directly to an automated voicemail message. A message is left requesting an update and the call be returned. The Applicant does not respond.

[21] On 18 September 2019 the Applicant returns the Commission’s calls and advises she:

•  is still not well enough to proceed;

•  wants to continue with the matter;

•  can provide a medical certificate next week;

•  does not have a computer at home so she may not be able to email the certificate to us. She said that if she can’t email documents, she will send them in the mail; and

•  does not answer the phone to unknown numbers but will return calls if a message is left.

[22] On 25 September 2019 the Applicant calls the Commission to advise she is sending a letter from her doctor which states she is still suffering from severe anxiety and asks that the matter is delayed for a further six months.

[23] A medical certificate which states that the Applicant is suffering severe anxiety and depression and would like to delay proceedings for another six months is received on 3 October 2019.

[24] On 21 October 2019 a letter is sent to the Applicant giving her an extension of three months and advising that “If we do not otherwise hear from you, we will contact you again in three months to determine if your application can proceed.” There was no contact from Applicant.

[25] Correspondence was sent to Applicant on 31 January 2020, following on from correspondence sent to her in October 2019, regarding the fact the application has not progressed in over two years.

[26] On 17 February 2020 the Applicant contacts the Commission to discuss the letter dated 31 January 2020. The Applicant advises she will respond via email ‘tomorrow’ indicating her preference for a Mention.

[27] On 19 February 2020 the Applicant sends an email to the Commission requesting a Mention.

[28] The matter is listed for a Mention by telephone before Commissioner Bissett on 25 February 2020.

[29] At the Mention the Applicant confirms that she wishes to proceed with her application and is content for the Commissioner to issue directions and the Respondent confirmed that it still presses its two jurisdictional objections.

[30] Commissioner Bissett advises the parties that the objection that the application was made out of time will be listed in the first instance for hearing and if necessary, a second hearing addressing the Respondent’s second objection of No Dismissal and the merits of the application will then be dealt with together.

[31] The Respondent requested a longer period to review the Applicant’s material due to the turnover of staff since the application was filed.

[32] Commissioner Bissett warned the parties that she would not allow any extensions of time on the requirement to file submissions.

[33] On 27 February 2020 Directions were issue regarding out of time objection:

•  Applicant to file by 4.00 pm Thursday, 26 March 2020; and

•  Respondent to file by 4.00 pm Thursday, 16 April 2020.

•  The Directions noted no extensions to file would be allowed.

[34] The parties were advised the matter would be listed for hearing in Perth in due course.

[35] The application was allocated to the Commission as currently constituted.

[36] On 13 March 2020 the parties were issued a Notice of Listing setting the matter down for hearing on Friday, 24 April 2020, it was highlighted that no extensions of time for filing of materials will be granted by the Commission and not complying with the Commissions directions may mean the application is dismissed without further notice.

[37] On 24 March 2020 the Applicant called Chambers and left a voice message.

[38] On 25 March 2020 Chambers returned the Applicants call, there was no answer a voice message was left providing the Applicant with Chambers number should she wish to call back.

[39] The Applicant failed to file her materials by 26 March 2020 as directed.

[40] On 27 March 2020, the Applicant called Chambers and left a voice message.

[41] That same day Chambers returned the Applicant’s call, there was no answer, Chambers left a voice message.

[42] Later on 27 March 2020, the Applicant returned the call stating her mobile phone was previously broken and she couldn’t afford for it to be fixed, she was unable to contact Chambers any other way and requires an extension. The Associate explained to the Applicant that the Directions issued by Commissioner Bissett on 27 February 2020 put the parties on notice of filing requirements and that no extension would be allowed and again the parties were reminded on the Notice of Listing from Chambers two weeks ago she would not be granted any further extensions.

[43] As at the date of this Decision no further contact has been made by the Applicant and no materials have been filed.

The legislation

[44] Section 577 obliges the Commission to perform its functions and exercise its powers in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[45] Further section 578 relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant part of the Act.

[46] A section 394 application such as this falls under Part 3-2 Unfair Dismissal of the Act.

[47] The objects of Part 3- 2 Unfair Dismissal are prescribed in section 381. These objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[48] Section 587(3) empowers the Commission to dismiss an application on its own initiative.

Decision

[49] The Applicant has sought and been granted multiple adjournments of this matter over a period of two years. The Applicant has repeatedly failed to comply with the Commissions directions to provide her materials. The Applicant was advised no further extensions would be allowed. The Applicant was on notice that non-compliance would be grounds for the application to be dismissed.

[50] The Applicant is unable or unwilling to provide the materials required of her. The Applicant has been on notice as to the consequence of further non-compliance.

[51] The Applicant in the circumstances here has been given more than a fair go.

[52] The Respondent employer is also entitled to a fair go including having their jurisdictional objections determined within a reasonable time.

[53] Consequently, my decision is that this application for an unfair dismissal remedy will now be dismissed on the initiative of the Commission under section 587(3) of the Act.

[54] An order to this effect will be issued in conjunction with this decision.

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