Karla McKeon v Kimberley Land Council T/A Kimberley Land Council

[2019] FWC 7560

[2019] FWC 7560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karla McKeon
v
Kimberley Land Council T/A Kimberley Land Council
(U2019/5936)

COMMISSIONER WILLIAMS PERTH, 1 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Karla McKeon (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Kimberley Land Council T/A Kimberley Land Council (the Respondent).

[2] The Respondent’s response to the application objects to the application on the grounds that the dismissal was a case of genuine redundancy.

[3] This matter was the subject of a conciliation conference conducted by a Fair Work Commission (Commission) Conciliator on 8 July 2019. An offer to settle the matter was made by the Respondent but the Applicant’s legal representative advised the following day that this was not accepted by the Applicant.

[4] Consequently, the application was referred for hearing and determination.

[5] On 2 August 2019, the Commission provided the parties with a notice of listing advising a hearing would be held on the 10^th and 11^th of October 2019 in Broome. Directions required the parties to provide their materials by particular due dates.

[6] On 21 August 2019, the Respondent’s legal representative, on behalf of both parties, advised the Commission that they had reached a settlement in principle with a view to entering into a deed of settlement within the next few days and therefore requested that the Commissions directions and the hearing dates be vacated.

[7] Consequently, the Commission notified the parties that the hearing was cancelled. This notification was provided to the Applicant at her email address and the Applicant’s legal representative.

[8] On 26 August 2019, the Applicant, not her legal representative, emailed the Commission advising that she did not accept the matter is settled and requested the matter be listed for hearing. She said further legal representation would be sort and details will be provided.

[9] After a number of enquiries, the Commission was advised by the Applicants legal representative on 19 September 2019, that they had no instructions from her and had been unable to contact her.

[10] As of 19 September 2019, there had been no further contact from the Applicant herself. Consequently, on that day the Commission wrote to the Applicant a letter which was sent by email and post recounting the history of the matter and pointing out that since her advice to the Commission on 26 August 2019, she had not provide any further information to the Commission.

[11] The letter included directions for the Applicant to file in the Commission and serve on the Respondent by 4:00pm Friday, 4 October 2019, witness statements and an outline of submissions.

[12] The letter advised the Applicant that if she did not wish to proceed further with the application she was directed to advise the Commission of this by 4:00pm Friday, 4 October 2019.

[13] The letter closed by advising that if the Applicant failed to comply with the directions by the due date the Commission would take it, she did not wish to continue with her application and the file will be closed without further notice.

[14] On 3 October 2019, the Commission received an email from the Applicant saying she was seeking an extension of time to seek funds for further legal representation to begin the process and draft a witness statement.

[15] On 9 October 2019, at 10:49am the Applicant rang the Commission and spoke to my Associate requesting an extension for the hearing to be held the next day. The Applicant was advised that hearing had been vacated and new directions had been issued for her to file a response. She expressed some concern she had with her email account and my Associate asked if the Commission could post materials to the post office box but she said that was not checked regularly. The Applicant said she would provide her father’s email address so that the Commission’s correspondence would go two email accounts. My Associate requested she email Chambers with the second email address.

[16] The Applicant has not provided a secondary email address following this phone conversation.

[17] On 9 October 2019, at 1:20pm my Associate on my instructions emailed the Applicant advising that the directions issued in the Commission’s letter of 19 September 2019 remained in place however, the reply dates were extended to 18 October 2019.

[18] Nothing was received from the Applicant by 18 October 2019, nor was there any further correspondence from her by that date.

[19] On 21 October 2019, the Applicant sent an email to the Commission and the Respondent’s legal representative saying she was unwell and was due for review tomorrow attaching a medical certificate. The Applicant went on to say to the Respondent’s legal representative that she would like to formally discuss settlement.

[20] The medical certificate the Applicant supplied was dated 17 October 2019 and stated she was receiving medical treatment for the period Thursday, 17 October 2019 to Friday, 18 October 2019 inclusive and would be unfit to continue her usual occupation. No explanation as to the relevance of this to the failure to again comply with the Commissions directions was provided.

[21] As at the date of this decision there still has been no contact from the Applicant

The legislation

[22] 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.

[23] 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.

[24] A section 394 application falls under Part 3-2 unfair dismissal of the Act.

[25] 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.

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

Decision

[27] In this case the Applicant has failed to comply with the Commission directions notwithstanding extensions of time to do so.

[28] The Respondent employer is entitled to a fair go including having the claim made against them and their objection determined within a reasonable time.

[29] The Applicant in the circumstances here has been given a fair go.

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

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

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