Kate Dean v Allied Health Services Australia/Rehabilitation at Home

[2018] FWC 3463

[2018] FWC 3463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kate Dean
v
Allied Health Services Australia/Rehabilitation at Home
(U2018/897)

COMMISSIONER BISSETT MELBOURNE, 14 JUNE 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 31 January 2018, Ms Kate Dean 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). Ms Dean said that her employment had been terminated by Allied Health Services Australia/Rehabilitation at Home (AHSA) on 18 December 2017, with it taking effect on 12 January 2018.

[2] On 7 February 2018, AHSA filed its Form F3 – Employer response to unfair dismissal application in which it raised two jurisdictional objections to Ms Dean’s application. AHSA objected on the basis that Ms Dean’s application was lodged out of time and that Ms Dean was not an employee as she was a sub-contractor.

[3] The matter was listed for conciliation on 2 March 2018, however the conciliation could not proceed as Ms Dean could not be contacted at the relevant time.

[4] On 21 March 2018, the Associate to Deputy President Dean wrote to AHSA by email regarding its jurisdictional objection that the application was lodged out of time. The Associate referred to two letters sent by ahsa to Ms Dean, the first on 18 December 2017 confirming that “effective 15 January 2018 Allied Health Services Australia would no longer require the applicant’s services” and the second sent on 8 January 2018 “confirming that the last day of supply of services would be 12 January 2018”. The Associate sought clarification from AHSA as to the basis of its assertion that the application has been made out of time.

[5] On 22 March 2018, AHSA responded to the Associate’s email and advised that its “interpretation of 21 days was from the date the notice of contractual termination was issued, being the 18th December 2017”.

[6] On 6 April 2018, the Associate to Deputy President Dean again wrote to AHSA by email to confirm that a dismissal will generally take effect from the last date a person performs work and on the basis of the information it had provided, it appeared that Ms Dean’s application had been made within time. AHSA was advised that should it wish to dispute this, the Deputy President would list the matter for a hearing.

[7] On 17 April 2018, AHSA contacted the Chambers of Deputy President Dean by telephone and advised it wished to withdraw its jurisdictional objection that the application was lodged out of time. AHSA agreed that the last day Ms Dean performed work was 12 January 2018. AHSA further advised that it maintained its second jurisdictional objection that Ms Dean was engaged as a sub-contractor and was not an employee.

[8] On 19 April 2018, directions were issued by the Commission. Ms Dean was directed to file material in support of her application by no later than noon on 8 May 2018. AHSA was directed to file its material in opposition to the application by no later than noon on 29 May 2018. The directions were sent to Ms Dean’s nominated email and postal addresses.

[9] On 8 May 2018, Ms Dean contacted the Commission by telephone regarding her submissions. She advised that she had been away from home, and had only recently returned and received the Commission’s mail correspondence. Ms Dean advised that accordingly, she had only just become aware that her submissions were due that day. She advised that the email address that the Commission had sent correspondence to was incorrect and that she had not received any correspondence from the Commission regarding her matter. The Commission advised that if Ms Dean wished to have further time to complete her submissions, she must make an extension request in writing to the Commission. On the same day, Ms Dean wrote to the Commission by email requesting a six week extension to file her material. She advised that she had been travelling to visit family following the birth of her grandchild, and that she had not received any email correspondence from the Commission as the email address on the letter sent to her was incorrect. She advised that she was not aware of any correspondence sent to her by the Commission until that day and said that a six week extension would enable her to file her material and seek legal advice in relation to her matter.

[10] Later that day, AHSA wrote to the Commission by email to object to Ms Dean’s extension request. It noted that Ms Dean had “been afforded many months to actively participate in the FWA process and has negated to do so”, and highlighted that she did not attend the conciliation scheduled for 2 March 2018, and nor did she meet her obligation to file her material by noon that day. AHSA further asserted its jurisdictional objection that Ms Dean was a sub-contractor and stated that Ms Dean’s application was “simply a means to inconvenience, by wasting both resource[s] and time”. AHSA detailed a time line of events which it believed demonstrated Ms Dean had consistently not followed due process and noted that it had acted “fairly and promptly as directed” by the Commission. Finally, it stated that Ms Dean should not be granted an extension to file as it did not consider her request to contain “exceptional and rare circumstances” but rather submitted this was a “repeated history of non response, nil communication and non attendance”.

[11] On 10 May 2018, the Commission discussed Ms Dean’s extension request with her by telephone. She was advised that her request had been denied and that her matter would proceed to a non-compliance hearing the following day. The Commission explained the purpose and process of the non-compliance hearing and Ms Dean indicated that she would attend. On the same day, the Commission discussed the non-compliance hearing with AHSA by telephone and AHSA confirmed its attendance. Later that day, a Notice of Listing was sent to the parties by email and to Ms Dean’s nominated postal address confirming the scheduling of a non-compliance hearing on 11 May 2018.

[12] On 11 May 2018, a non-compliance hearing proceeded before Commissioner Wilson. Ms Dean and AHSA attended by telephone. AHSA made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Dean’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted AHSA’s oral application. Further, the Commissioner directed that a letter be sent to Ms Dean requesting a response to the s.399A application, which would also detail the history of the Commission’s attempts to contact her in relation to her matter.

[13] On 14 May 2018, correspondence was sent to Ms Dean by email directing her to file submissions and other documentary material in respect of the s.399A application by close of business on 22 May 2018. This correspondence further detailed the 12 attempts made by the Commission, either by phone or email, to provide Ms Dean with information relating to her application. Finally the correspondence stated that if the Commission did not receive a response, Ms Dean’s application for relief for unfair dismissal would be dismissed.

[14] On 15 May 2018, Ms Dean replied to the Commission by email, confirming receipt of the correspondence.

[15] To date, Ms Dean has not filed any material with the Commission in response to the s.399A application.

[16] 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.

[17] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[18] As Ms Dean did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Prior to 8 May 2018, Ms Dean had failed to respond to numerous attempts made by the Commission to contact her. She advised that she did not receive any of the Commission’s correspondence since the initial lodgement of her application to the date her submissions were due. However, the Commission sent multiple emails to Ms Dean regarding the status of her application and as Ms Dean had incorrectly recorded her nominated email address on her application, she did not receive this correspondence. For a period of over four months, from the lodgement of her application to the date her submissions were due, Ms Dean did not attempt to make further enquiries with the Commission as to why she had not received any communication regarding her application. Further, a letter outlining AHSA’s s.399A application was sent to Ms Dean on 14 May 2018 and Ms Dean acknowledged receipt of this email on 15 May 2018. Despite this, she has not submitted any response as to why the Commission should not dismiss her application.

[20] In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Dean’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

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