Keira Fitzpatrick v Programmed Skilled Workforce
[2018] FWC 4032
•13 JULY 2018
| [2018] FWC 4032 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Keira Fitzpatrick
v
Programmed Skilled Workforce
(U2018/3502)
| Commissioner Bissett | MELBOURNE, 13 JULY 2018 |
Application for an unfair dismissal remedy – s.399A application to dismiss.
Ms Keira Fitzpatrick was employed by Programmed Skilled Workforce (PSW). She commenced employment with PSW on 12 May 2017. PSW is a labour hire company and on 12 May 2017 Ms Fitzpatrick commenced a job placement with TasWater. Ms Fitzpatrick’s placement with TasWater came to a conclusion on 14 March 2018. The circumstances that gave rise to this are unclear but not relevant to this decision.
Soon thereafter on 19 March 2018 Ms Fitzpatrick resigned from PSW. Ms Fitzpatrick said that she was forced to do so because PSW could not provide her with a workplace that was “safe, adhered to employment law and other legal requirements, their lack of inability or interest performing the required duty of care, an overall treatment of me as a source of income, not a person and my personal conclusion they are only interested in protecting their business interests and avoiding a workers compensation certificate…” On this later point Ms Fitzpatrick said that she was being bullied by her line manager at TasWater.
On 5 April 2018 Ms Fitzpatrick made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal. In her application Ms Fitzpatrick said that she was dismissed from a labour hire agreement on 14 March 2018 and that she had a casual contract which ended on 19 March 2018.[1] If Ms Fitzpatrick’s date of dismissal was 14 March 2018 her application for relief from unfair dismissal was made outside the statutory time limit of 21 days. If her date of dismissal was 19 March 2018 her application was made well within time.
PSW filed its Form F3 – Employer Response to Unfair Dismissal Application on 27 April 2018. In its response PSW indicated that Ms Fitzpatrick had resigned from PSW on 19 March 2018.[2] However, PSW said it was not clear on which date Ms Fitzpatrick claimed she was dismissed and it reserved its right to raise a jurisdictional objection to the application on the grounds that it was made out of time should Ms Fitzpatrick rely on a date outside the 21 day time period for her application. PSW raised a further jurisdictional objection to the application on the grounds that the Ms Fitzpatrick had not been dismissed but had, in fact, resigned.
The application was listed for conciliation on 7 May 2018 where it did not settle. Ms Fitzpatrick has raised a number of issues with respect to how the conciliation was conducted. That it was not successful or that the conciliator did not fully accept or endorse the views put forward by Ms Fitzpatrick are not grounds to suggest that the conciliation was not legitimate.
For some reason the question of the date on which Ms Fitzpatrick claimed she was dismissed (forced to resign) does not appear to have been subject to any further clarity.
On 10 May 2018 directions were issued which required the filing of submissions and evidence of Ms Fitzpatrick and PSW in relation to “Extension of Time (Effective Date of Dismissal) and Jurisdiction (Not an Employee)”. On receipt of these directions PSW indicated that it had not raised a jurisdictional objection that Ms Fitzpatrick was not an employee.
On 15 May 2018 direction were re-issued in relation to the filing of submissions and evidence. Inexplicably, those directions listed the matter for a jurisdictional hearing in relation to the “extension of time” within which Ms Fitzpatrick could make her application for unfair dismissal and for “Minimum Employment Period – Casual Employee not Engaged on a Regular and Systematic Basis.”
On 15 May 2018 Ms Kate Grieg of PSW called the Commission and again raised queries with respect to the directions issued. PSW had not raised the second jurisdictional issue set out in the directions.
With respect to the extension of time the directions stated that:
1.The applicant (Keira Fitzpatrick) is required to file with the Fair Work Commission, marked attention UNFAIR DISMISSAL ROSTERS, and serve on the respondent:
· the Applicant’s Outline of Argument: extension of time;
· the Applicant’s Statement(s) of Evidence; and
· the Applicant’s Document List
by no later than noon on Monday, 21 May 2018.
On 21 May 2018 Ms Fitzpatrick filed material in response to the directions issued. This is further discussed below. Whilst the directions issued on 15 May 2018 indicated that PSW was required to file submissions in relation to its jurisdictional objection, minimum employment period, it did not do so.
On 24 May 2018 PSW made an application to the Commission under s.399A of the Fair Work Act 2009 (FW Act) and sought that the directions issued on 15 May 2018 be set aside pending a decision on that application.
The section 399A application
Section 399A of the FW Act allows the Commission to dismiss an application for unfair dismissal in certain circumstances. It states:
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 another 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.
Section 399(2) of the FW Act has been met. PSW is, in this case, the employer respondent to the application.
Section 399A of the FW Act however has limited scope. It only operates in circumstances where an applicant in an unfair dismissal matter has engaged in one of three types of conduct specified in s.399A(1) and that the conduct was unreasonable. PSW rely on s.399A(1)(b) to found its application.
In particular, PSW says that Ms Fitzpatrick has failed to comply with the directions of the Commission in that she:
·has not provided PSW with the evidence on which she seeks to rely in her application for an EOT;
·has failed to file material that addresses the extension of time issue.
The section 587 application
PSW further submits that Ms Fitzpatrick’s application is frivolous and vexatious and has no reasonable prospect of success.
Section 587 of the FW Act states:
587 Dismissing applications
(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note:For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
PSW said that Ms Fitzpatrick had not put any material before the Commission to suggest that there were actions of PSW that left her with no option other than to resign. It says that her application is confusing and therefore it is not possible for PSW to respond to in any meaningful way.
Further PSW says that the material filed by Ms Fitzpatrick is “nonsensical and lacking a clear or persuasive argument.” Ms Fitzpatrick’s conduct has been disrespectful to both employees of PSW and the Commission and is causing a waste of the Commission’s resources. Further, PSW said that the lack of a coherent application makes the application frivolous and vexatious.
For these reasons PSW says the Commission should dismiss Ms Fitzpatrick’s application.
The Mention
Given the confusion in relation to the directions that had been issued to Ms Fitzpatrick and PSW, particularly with respect to the grounds of PSW’s jurisdictional objections, whether or not the application was out of time, and the need to deal with the s.399A application, I listed the matter for Mention on 31 May 2018.
Ms Fitzpatrick and Ms Greig for PSW attended the Mention on 31 May 2018. Ms Fitzpatrick announced at the commencement of the Mention that she would not participate if Ms Greig continued to represent PSW because Ms Grieg had not properly completed the Form F3 submitted by PSW and because Mr Kevin Cameron had signed the s.399A application. Ms Fitzpatrick then left the Mention.
The Mention continued and Ms Greig advised the Commission that:
PSW only maintained its objection that the application was out of time if Ms Fitzpatrick claimed a dismissal date of 14 March 2018;
PSW maintained its objection that Ms Fitzpatrick had not been dismissed;
PSW had never raised an objection to the application on the grounds that Ms Fitzpatrick was not a regular and systematic employee.
Ms Greig said that PSW continued to press for a hearing in relation to the s.399A application. When asked by me if it was actually intended to make an application pursuant to s.587 of the FW Act that the application of Ms Fitzpatrick had no reasonable prospect of success, Ms Greig advised that PSW considered that could be a consideration of the Commission pursuant to s.399A(3) of the FW Act.
Subsequently submissions were sought in relation to the s.399A application from Ms Fitzpatrick and PSW. The application was heard by me on 26 June 2018.
Submissions
Programmed Skilled Workforce
PSW relied on the material contained in its s.399A application. In reply to the submissions of Ms Fitzpatrick PSW said:
·The application of Ms Fitzpatrick had no reasonable prospect of success. Her engagement with TasWater was terminated by TasWater because of her conduct. She was however advised by PSW that she was still employed by it and that it would seek to find another engagement for her;
·Ms Fitzpatrick could have remained an employee of PSW and allowed PSW to source another engagement for her but instead chose to resign;
·PSW was unaware of any concerns Ms Fitzpatrick had at TasWater and therefore could not be said to have engaged in conduct that forced Ms Fitzpatrick to resign from PSW;
·It is otherwise not clear in any material filed by Ms Fitzpatrick how the circumstances she was in forced her to resign from PSW. The onus of proof is on Ms Fitzpatrick to show that she was forced to resign from PSW and she has not done so;
·Ms Fitzpatrick has fallen short in establishing that she was forced to resign and her application therefore has no reasonable prospect of success;
·Ms Fitzpatrick has engaged in a course of conduct intended to harass, threaten, insult and intimidate PSW and has engaged in disrespectful conduct. She has sent inappropriate emails and has had inappropriate contact with Ms Greig and Mr Cameron since making her application for unfair dismissal;
·The failure of Ms Fitzpatrick to participate in the Mention on 31 May 2018 is demonstrative of a failure to prosecute her case. Ms Fitzpatrick’s submission in respect to the s.399A application does not address that application and she has failed to file material in relation to the extension of time application.
In its oral submissions at hearing PSW said that whilst it had originally made its application to dismiss under s.399A of the FW Act this “opens the door” to the Commission having power under s.587 of the FW Act to determine if the matter should be dismissed because it has no reasonable prospects of success.
Ms Fitzpatrick
Ms Fitzpatrick filed written submissions in relation to the s.399A application of PSW. In these submissions she said that:
·The conciliation was not a conciliation because it was not genuine;
·Her initiating application (Form F2) is clear and meets the requirements for a forced resignation;
·She made a bullying allegation to “Bev and TasWater” on 14 March 2018.
Ms Fitzpatrick provided a substantial number of attachments with her submission including over one hundred pages of what appears to be computer error messages.
Ms Fitzpatrick expanded on her submissions during the hearing. In particular she raised concerns that her computer and mobile phone had been infected by some malware and that this was possibly caused by an email from PSW attaching a timesheet she had requested or by an email from the Commission. Ms Fitzpatrick also raised concerns with respect to some fatal injury caused to her cat that coincided with her application to the Commission. She said that some of her conduct complained of by PSW is attributable to what she considers the conduct of PSW.
Ms Fitzpatrick said that she had complied with the directions of the Commission and had not understood that she was required to file any evidence. She said that she filed a document list but nothing said she was required to file the documents themselves.[3] In any event, Ms Fitzpatrick said that the extension of time “was removed [as] it was seen as ridiculous.”[4] Otherwise she said she would file the documents required in relation to her application when required to in accordance with directions for the hearing of her substantive application.
Ms Fitzpatrick admitted that she had not taken the conciliation seriously.
Ms Fitzpatrick said she did not understand why she needed to address the submissions of PSW that her application had no reasonable prospect of success “except to say I’m extremely confident in how I had no choice but to resign.”[5]
Conclusion
Section 399A application
I am not satisfied that Ms Fitzpatrick has unreasonably failed to comply with the directions of the Commission such that I should dismiss her application pursuant to s.399A of the FW Act.
At the time the s.399A application was made the only directions issued to Ms Fitzpatrick were in relation to the extension of time. Ms Fitzpatrick did, in fact, file submissions and did provide a document list although she did not provide a statement of evidence. She filed this material on the day it was due.
In relation to the statement of evidence I do not find this grounds for a finding that Ms Fitzpatrick unreasonably failed to comply with the directions. It is not clear that Ms Fitzpatrick understood the reasons why she was required to seek an extension of time. In her application to the Commission Ms Fitzpatrick said that she was “dismissed from the labour hire arrangements 14 March 2018” and that she “had a casual contract which I ended 19 March 2108 [sic]”.[6] There is no dispute that Ms Fitzpatrick was employed on a casual contract with PSW. There is also no dispute that Ms Fitzpatrick resigned her employment with PSW on 19 March 2018 (although claims she had no choice). In the circumstances, it is reasonable to conclude that Ms Fitzpatrick believed her date of dismissal was 19 March 2018 and it was inexplicable to her that she should have to seek an extension of time.
PSW made clear that it would only raise the jurisdictional objection that the application was made outside the 21 day time limit if Ms Fitzpatrick sought to rely on the earlier date of 14 March 2018 as the date of dismissal. There is nothing in Ms Fitzpatrick’s material to suggest that she does so.
Further, I am satisfied that in providing a document list (and not the documents) Ms Fitzpatrick complied literally with the directions issued to her that required she file a “document list”. It did not say she was required to file the documents themselves. On a strict approach Ms Fitzpatrick did meet the requirements of the directions. I would note that had Ms Fitzpatrick followed the link in the directions she would have gone to a pro-forma document list page which would have advised her to also submit the documents, however, there is no obligation on an Applicant to use the forms provided by the Commission for this purpose and it is evident in the format of the material provided by Ms Fitzpatrick that she did not do so.
For these reasons I have decided that the s.399A application should be dismissed.
Section 587 application
In its s.399A application PSW raised that Ms Fitzpatrick’s unfair dismissal application was frivolous or vexatious or had no reasonable prospect of success. It said that s.399A(3) “opens the door” to a consideration of other grounds on which the application might be dismissed.
I understand from this that PSW says that, having raised by application the dismissal of the unfair dismissal application, it is also open to the Commission to consider, on its own motion, if the Commission should dismiss the application on the grounds specified in s.587 of the FW Act. I reach this conclusion in the absence of any formal application by PSW that the unfair dismissal application be dismissed pursuant to s.587 of the FW Act.
Whether PSW seeks that I dismiss the application on my own motion pursuant to s.587 of the FW Act, I decline to do so. If there is an application from PSW that I should dismiss the application I also decline to do so.
At this stage in proceedings Ms Fitzpatrick has not been given an opportunity to put the extent of her case before the Commission. Some inexplicable directions have been issued with respect to jurisdictional matters not claimed by PSW and an actual objection that the application was filed out of time has not been made (PSW do no more than reserve its rights should Ms Fitzpatrick claim the dismissal was on 14 March 2018).
Given that Ms Fitzpatrick has not been given the opportunity to file submissions, evidence and her documents (not just a documents list) it is difficult to determine whether her application has no reasonable prospects of success and it is not apparent, at this stage, that it is vexatious or frivolous.
In these circumstances I do not consider it appropriate at this point in time to dismiss the application.
Ms Fitzpatrick should not take this as an indication that her application will succeed. She is not particularly clear in her application as filed in the Form F2 on how it is she says she was forced to resign because of conduct, or a course of conduct, engaged in by PSW. Her submissions, evidence and documents will need to clearly demonstrate that this is what occurred.
Ms Fitzpatrick should, in pursuing her application, ensure that she communicates with the Commission and PSW in a respectful manner and that such communication is in accordance with the directions and requirements issued to her. PSW is correct when it complains of the disrespectful nature of communications from Ms Fitzpatrick to both employees of PSW and the Commission. Communication of that type is neither helpful nor necessary.
This decision does not preclude any further application by PSW under s.399A or s.587 of the FW Act should it consider the circumstances warrant such an application.
Further directions will now be issued for the hearing of the substantive application. Should, in that material, Ms Fitzpatrick claim she was dismissed from PSW on 14 March 2018 leave is reserved to PSW to seek to have the extension of time matter dealt with (as is required by the FW Act) prior to a determination of the merits of the claim.
COMMISSIONER
Appearances:
K. Fitzpatrick on her own behalf.
K. Greig for Programmed Skilled Workforce.
Hearing details:
2018.
Melbourne via video link to Hobart:
June 26.
<PR608816>
[1] Form F2 – Unfair Dismissal Application of Ms Fitzpatrick.
[2] Form F3 – Employer Response to Unfair Dismissal Application, Q 1.4 and Q3.1.
[3] Transcript PN98.
[4] Transcript PN102.
[5] Transcript PN93.
[6] Form F2, question 1.3.
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