Karla McKeon v Karajarri Traditional Lands Association

[2021] FWC 3446

[2021] FWC 3446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karla McKeon
v
Karajarri Traditional Lands Association
(U2021/1505)

DEPUTY PRESIDENT BINET PERTH, 16 JUNE 2021

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed.

[1] On 23 February 2021, Ms Karla McKeon (Ms McKeon) 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 Karajarri Traditional Lands Association (Karajarri).

[2] On 12 March 2021, Karajarri filed a Form F3 - Employer response to unfair dismissal application, raising the jurisdictional objections that Ms McKeon was not a national system employee and that she was not dismissed (Jurisdictional Objections).

[3] The matter was listed for a staff conciliation on 19 March 2021 and was not settled.

[4] The Application was then allocated to my Chambers for determination.

[5] A conference was held on Tuesday 6 April 2021 at which an offer was made to Ms McKeon by the Karajarri Traditional Lands Association to resolve the matter.  Ms McKeon declined to accept the offer and indicated she wished for the matter to be listed for a Hearing.

[6] Directions were issued to parties on Wednesday 14 April 2021 which required Ms McKeon to file her materials in relation to the merit of the Application by 22 April 2021 and her materials in response to the jurisdictional objection to the Application by 29 April 2021. (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[7] Ms McKeon failed to file any materials in accordance with the Directions.

[8] On Tuesday 27 April 2021 Ms McKeon contacted Chambers and indicated that she had been unwell. She was advised by Chambers that if she sought an extension of time to file her materials she should make that application in writing supported by any relevant medical evidence.

[9] On Thursday 29 April 2021 Ms McKeon was again reminded that her materials were overdue.

[10] .On Tuesday, 4 May 2021 Karajarri sent an email to Chambers attaching an application pursuant to section 399A of the FW Act (FirstDismissal Application). Karajarri submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms McKeon unreasonably failed to comply with a direction of the Commission when she failed to file her materials in accordance with the Directions.

[11] On Tuesday 4 May 2021, Ms McKeon was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 6 May 2021.

[12] On Wednesday 5 May 2021 Ms McKeon forwarded a medical certificate to Chambers.

[13] Later the same day Chambers replied to Ms McKeon pointing out that at the conference which was held on 6 April 2021 I explained to her the materials that she would be required to file and informed her that she should commence preparing those materials immediately. Chambers noted that the Directions required that she file her materials in relation to the merit of the Application by 22 April 2021 and her materials in response to the jurisdictional objection to the Application by 29 April 2021. Chambers noted that she had not complied with either of these timeframes.

[14] The medical certificates which Ms McKeon provided stated that she was unfit to perform her normal occupation, not that she was unfit to prepare materials or give instructions to representatives to prepare materials on her behalf. Relevantly the medical certificates stated that she was only intermittently unfit. In the circumstances I determined it appropriate to grant her a further period of time to lodge her materials. Consequently amended directions were issued to the parties which required Ms McKeon to file her materials by Thursday 13 May 2021.

[15] On Friday 7 May 2021 Ms McKeon requested that the Application be listed for a further conference in an effort to resolve the issues in dispute between the parties. The Application was listed for a conference on Tuesday 10 May 2021. At the Conference Ms McKeon indicated that she would resolve the matter for four week’s pay and on the terms set out in settlement agreement prepared by Chambers. The matter was adjourned for Karajarri to consider this offer.

[16] On Tuesday 11 May 2021 Karajarri confirmed they had accepted the offer on the terms set out in the draft settlement agreement and provided Chambers and Ms McKeon with an executed settlement agreement.

[17] Later the same day Ms McKeon informed Chambers and Karajarri that she would not sign the settlement agreement.

[18] On Thursday, 13 May 2021 Karajarri sent an email to Chambers attaching an application pursuant to section 399A of the FW Act (Second Dismissal Application). Karajarri submitted that the Application should be dismissed pursuant to section 399A on the grounds that Ms McKeon unreasonably failed to discontinue an application after a settlement agreement had been concluded.

[19] On Tuesday 18 May 2021, Ms McKeon was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm on Wednesday 19 May 2021.

[20] No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Second Dismissal Application by Wednesday 19 May 2021.

[21] 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 other 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).

(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.”

[22] Ms McKeon failed to file the materials she was directed to file by the dates specified in the Directions, or at all. As at the date of this decision Ms McKeon has still not filed any materials in support of her Application or in opposition to the Second Dismissal Application. I am satisfied that Ms McKeon has unreasonably failed to comply with directions of the FWC relating to this Application and unreasonably failed discontinue the application after a settlement agreement has been concluded. On the Application of Karajarri and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

[23] An Order to this effect will be issued with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR730748>

 1   Print PR730749.