Katrina Cupples v Okee Dokee Coomera Rivers Early Learning Centre

[2016] FWC 6188

[2016] FWC 6188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katrina Cupples
v
Okee Dokee Coomera Rivers Early Learning Centre
(U2016/2929)

COMMISSIONER WILSON MELBOURNE, 31 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 20 June 2016, Ms Katrina Cupples made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Cupples’ employment had been terminated by (Okee Dokee Coomera Rivers Early Learning Centre (ODCRELC) on 10 June 2016.

[2] The matter was listed for conciliation on 21 July 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing on 6 and 7 October 2016.

[3] Ms Cupples was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 15 August 2016.

[4] Ms Cupples did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 19 August 2016.

[5] Ms Cupples did not attend the non compliance hearing. ODCRELC made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Cupples had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted ODCRELC’s oral application.

[6] On 19 August 2016, Ms Cupples was sent correspondence informing her of ODCRELC’s section 399A application. Ms Cupples was directed to file submissions and other documentary material in respect of ODCRELC’s application by close of business, on 26 August 2016. Ms Cupples was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 26 August 2016, Ms Cupples emailed the Commission an outline of argument.

[8] On 29 August 2016, Ms Cupples emailed the Commission as follows:

This email outlines my reasons for not being present at the non compliance hearing a few weeks back. Because I have just started my new job, I was unable to take another day off for the hearing as I already took a day off for the mediation hearing where I had hoped Okee Dokee and I could resolve the matter. Following Lyndon Sanders comments and outburst on the phone for the mediation hearing, I was very upset and intimidated by his approach to the whole situation and felt very overwhelmed by where the whole case was going. I then decided to just see the matter through to the end and have no regrets. I believe I was unfairly dismissed which is why I submitted the application and I would like to finish it regardless of the outcome.

Conclusion

[9] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[10] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[11] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[12] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[13] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[14] I am not satisfied that Ms Cupples has unreasonably failed to comply with a direction of the Commission. Even if I had found her non-compliance was unreasonable, I would not in my discretion have dismissed this matter. Ms Cupples has not indicated an unwillingness to have her matter ready for hearing. She has now filed her material. In these circumstances, I will dismiss ODCRELC’s section 399A application. An order giving effect to this decision will be issued today.

COMMISSIONER

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]

 3   PR 956665

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