Karyn Dewar v Superior Care Group Pty Ltd T/A Wellington Park Private Care
[2018] FWC 2975
•24 MAY 2018
| [2018] FWC 2975 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karyn Dewar
v
Superior Care Group Pty Ltd T/A Wellington Park Private Care
(U2017/9487)
| Deputy President Clancy | MELBOURNE, 24 MAY 2018 |
Application for an unfair dismissal remedy – Application dismissed.
On 31 August 2017, Miss Karyn Dewar made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Miss Dewar said that her employment had been terminated by the Superior Care Group Pty Ltd T/A Wellington Park Private Care (Superior Care) in a letter dated 11 August 2017, that was received in the post by Miss Dewar on 22 August 2017.
On 5 October 2017, Superior Care filed its Form F3 – Employers response to unfair dismissal application in which it raised a jurisdictional objection to Miss Dewar’s application. Superior Care objected to the application on the basis that Miss Dewar had not met the minimum employment period.
The matter was listed for conciliation on 10 October 2017, however the matter did not proceed as Miss Dewar requested an adjournment. In an email to the Commission on 6 October 2017, Miss Dewar outlined ongoing issues with her health and requested an adjournment of the matter for three months.
On 16 October 2017, the Associate to Deputy President Dean wrote to Miss Dewar by email and requested she provide medical evidence in support of her request for a three month adjournment by no later than 27 October 2017. The correspondence stated that in order for Miss Dewar’s request to be considered, the medical evidence “should specifically deal with why you are unable to participate in a telephone conference, or provide information in writing to the Commission, in relation to your application”.
On 27 October 2017, Miss Dewar sent four medical documents by email to the Commission. One of the documents, a letter, was specifically prepared by a doctor in support of Miss Dewar’s request to adjourn her matter for three months. Two medical certificates and a further letter supported her contention that she was suffering ongoing medical issues and did not have capacity to work until early January.
On 7 November 2017, the Associate to Deputy President Dean wrote to the parties by email to advise that Deputy President Dean had agreed to stand the matter over as per Miss Dewar’s request. Parties were advised that directions would be issued in contemplation of Miss Dewar’s inability to participate in the process for the period noted. On the same day, these directions were issued by the Deputy President. Superior Care was directed to file its material in support of its jurisdictional objection by no later than 4.00pm on 19 December 2017. Miss Dewar was directed to file material in opposition to Superior Care’s jurisdictional objection by no later than 4.00pm on 30 January 2018. The matter was listed for a jurisdictional hearing on 6 February 2018.
On 17 November 2017, Superior Care wrote to the Chambers of Deputy President Dean withdrawing its jurisdictional objection.
On 21 November 2017, the Associate to Deputy President Dean wrote to the parties by email to confirm that the jurisdictional objection to the application had been withdrawn. The email confirmed that the directions issued on 7 November 2017 were vacated and the jurisdiction hearing listed for 6 February would be cancelled. The email further advised that the matter would be listed for arbitration. On the same day, Superior Care sent an email to the Commission requesting that the matter be listed for a conciliation as this had not yet been attempted.
On 23 November 2017, the Commission contacted Miss Dewar by telephone to discuss Superior Care’s request for a conciliation. Miss Dewar later sent an email to the Commission advising that she was preparing for surgery and consented to the matter being listed for conciliation.
On 24 November 2017, directions were issued by the Commission. Miss Dewar was directed to file material in support of her application by no later than noon on 21 December 2017. Superior Care was directed to file its material in opposition to the application by no later than noon on 18 January 2018. The matter was set down for hearing on 29 to 31 January 2018 and a conciliation conference was scheduled for 23 January 2018.
On 20 December 2017, an SMS message was sent to Miss Dewar reminding her that her submissions were due the following day.
On 21 December 2017, Miss Dewar contacted the Commission by telephone to request an extension for the filing of material. On the same day, she sent an email to the Commission outlining her request:
“I wish to get an extension with submitting the relevant documents … to the 3rd of January 2018. I recently underwent surgery and I'm still recovering so I've been unable to complete these as of yet.”
On 22 December 2017, amended directions were issued by the Commission. Miss Dewar was directed to file material in support of her application by no later than noon on 28 December 2017. Superior Care was directed to file its material in opposition to the application by no later than noon on 22 January 2018.
On 28 December 2017, Miss Dewar made a further request for an extension to file her submissions. In an email to the Commission, Miss Dewar stated:
“I … have made every attempt to complete this application by the 28th December 2017 but I’m unable to due to the fact that I have still been recovering from my recent surgery. Additionally due to the holiday period I have been unable to access any legal help. I wish to request a further extension to allow me adequate time post surgery to effectively respond.”
On 2 January 2018, the Commission attempted to contact Miss Dewar by telephone to request further information in support of her extension request. As she did not answer, a voicemail message was left requesting that she return the Commission’s call. An email was subsequently sent to Miss Dewar requesting she advise when she believed she would be able to provide her material and whether she intended to engage legal representation. Miss Dewar was also asked to provide a copy of any medical evidence to support her request for an extension.
On 3 January 2018, the Commission again attempted to contact Miss Dewar by telephone to discuss her request, however this was unsuccessful and a voicemail message was left. An SMS message was also sent requesting that she return the Commission’s call as soon as possible. On the same day, Miss Dewar sent an email to the Commission that attached a medical certificate and a document outlining the details of her surgery.
On 4 January 2018, the Commission sent an email to Miss Dewar to confirm whether she was still seeking an extension to file and if so, to confirm the date that she believed she would be able to file her material. The Commission also advised Miss Dewar of her options if she did wish to withdraw her matter, a consideration she had noted in her previous email.
On 8 January 2018, the Commission attempted to contact Miss Dewar by telephone regarding her extension request. A voicemail message was left requesting that she return the Commission’s call.
On 9 January 2018, Miss Dewar returned the Commission’s call. She provided an update on her health and stated that she was having difficulty obtaining legal assistance. She advised that she was still considering withdrawing her matter. The Commission requested that Miss Dewar respond to its email dated 4 January 2018 to advise whether she was still seeking an extension to file her material and/or an adjournment of her matter. Miss Dewar was also advised that she would need to provide supporting evidence and that a medical certificate indicating when she would be fit to participate in proceedings would be appropriate. Miss Dewar was further advised that her matter may proceed to a non-compliance hearing on 12 January 2018. The Commission subsequently sent an email to Miss Dewar with links to community legal centres to assist her in obtaining legal assistance.
On 10 January 2018, a Notice of Listing was sent to the parties by email confirming a non-compliance hearing was proceeding on 12 January 2018. On the same day, the Commission left a voicemail message for Miss Dewar confirming the date and time of the non-compliance hearing and requested that she return the Commission’s call to confirm her attendance.
On 12 January 2018, a non-compliance hearing proceeded before Commissioner Wilson. Miss Dewar could not be contacted for the hearing. Superior Care made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Miss Dewar’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted Superior Care’s oral application.
Following the non-compliance hearing, correspondence was sent to Miss Dewar’s nominated email and postal addresses advising her of Superior Care’s s.399A application. Miss Dewar was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 19 January 2018. This correspondence stated that if the Commission did not receive a response, Miss Dewar’s application for relief from unfair dismissal would be dismissed.
On 19 January 2018, Miss Dewar sent an email to the Commission requesting that her application be “placed on hold” while she restored her health. Her email attached a medical certificate stating that she did not have capacity for work until 4 February 2018, with a review scheduled for 5 February 2018.
On 30 January 2018, the Commission attempted to contact Miss Dewar by telephone regarding her request that her matter be stayed. As she did not answer, a voicemail message was left advising her that further information was required to support her request and she was requested to return the Commission’s call as soon as possible.
On 31 January 2018, the Commission sent an email to Miss Dewar advising her that based on the information she had provided, she would not be granted a stay and that she was required to provide additional evidence to support her request which should specify the period of time she would not be fit to take part in the proceedings.
On 29 March 2018, the Commission sent a further email to Miss Dewar which confirmed that no response had been received to its email of 31 January 2018. Miss Dewar was asked to provide the additional evidence requested by the Commission to support her request to stay the proceedings by no later than close of business on 6 April 2018 or the matter would be referred to me in my capacity as Panel Head for further consideration. No response was received from Miss Dewar.
On 12 April 2018, correspondence was sent to Miss Dewar’s nominated email and postal addresses again requesting her submissions in response to Superior Care’s s.399A application. Miss Dewar was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 26 April 2018. This correspondence stated that if the Commission did not receive a response, Miss Dewar’s application for relief from unfair dismissal would be dismissed. Miss Dewar was also sent an SMS message requesting that she contact the Commission as soon as possible.
On 10 May 2018, a final letter was sent to Miss Dewar by my Associate advising her that her matter had been allocated to my chambers as Panel Head for Termination of Employment. This letter was sent by email and by express post and was confirmed to have been delivered at Miss Dewar’s nominated postal address on 11 May 2018. The letter stated:
“On 12 January 2018, a non-compliance hearing was held for you to address the Commission on why you had not filed material in accordance with the Commission’s directions for you to do so by 28 December 2017. You could not be contacted at the start of that hearing. Superior Care Group made an application under s.399A of the Fair Work Act 2009 that your matter be dismissed due to your failure to comply with directions of the Commission. You were then sent correspondence informing you of the s.399A application and a response was sought.
On 19 January 2018, you supplied the Commission with a medical certificate and requested your matter be placed on hold. An email was then sent to you on 31 January 2018 requesting additional evidence to support your request and that you specify the period of time you would not be fit to take part in the proceedings. As no response had been received, a further email was sent to you on 29 March 2018 requesting you provide the information by no later than close of business on 6 April 2018.
As no response was received, correspondence was again sent to you on 12 April 2018 notifying you of the s.399A application and you were requested to respond by close of business on 26 April 2018. That correspondence was sent to you via express post.
In these circumstances, Deputy President Clancy now directs you to respond to the s.399A application made on 12 January 2018 and provide reasons as to why the Commission should not dismiss your application. If you have been unable to respond to the s.399A application to date because of medical incapacity, you are required to provide a medical certificate. This material is required by no later than close of business on Friday 18 May 2018.
If you no longer wish to pursue your application for unfair dismissal, please file a completed Form F50 – Notice of Discontinuance (see attached). Alternatively, you may telephone the Deputy President’s chambers … and discontinue over the phone.”
To date, Miss Dewar has not filed any material with the Commission in response to the letter of 10 May 2018.
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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Miss Dewar did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Until 19 January 2018, Miss Dewar was in contact with the Commission, requesting extensions to file material and providing information about her health. However, since 30 January 2018, there have been five attempts to contact Miss Dewar including via telephone, email and post and there has been no response from her. Miss Dewar has failed to provide evidence of sufficient weight to support her request for an extension to file material or to adjourn her application and she has not provided the Commission with any indication as to when she will be fit to participate in the proceedings that she initiated. Despite being given two opportunities to respond to Superior Care’s s.399A application, she has failed to do so. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Miss Dewar’s application. An order giving effect to this decision will be issued today.
DEPUTY PRESIDENT
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