Kerri Gerchow v Southern Star Road Pilots Pty Ltd T/A East Coast Pilot Services

[2017] FWC 2756

[2017] FWC 2756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerri Gerchow
v
Southern Star Road Pilots Pty Ltd T/A East Coast Pilot Services
(U2017/1951)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy.

[1] On 23 February 2017, Ms Kerri Gerchow made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Gerchow was notified of her dismissal by Southern Star Road Pilots Pty Ltd T/A East Coast Pilot Services (East Coast Pilot Services) on 22 February 2017.

[2] On 30 March 2017, directions were issued and the matter was listed for hearing from 5 June 2017. Ms Gerchow was directed to file an outline of argument, statement of evidence and document list by noon on Monday 24 April 2017. Ms Gerchow did not file any material by that time.

[3] Following attempts to contact Ms Gerchow regarding her outstanding material, the matter was listed for a non-compliance hearing before me on 28 April 2017. The preceding day, Ms Gerchow sent email correspondence to the Fair Work Commission advising she would not attend the non-compliance hearing due to work commitments and she had not realised her legal representative did not file the material by the due date until the evening of 27 April 2017. There is no record on the Commission’s file of a legal representative acting for Ms Gerchow.

[4] At the non-compliance hearing on 28 April 2017, East Coast Pilot Services made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Gerchow had failed to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted East Coast Pilot Services’ oral application. Correspondence was then sent to Ms Gerchow, informing her of East Coast Pilot Services’ s.399A application. Ms Gerchow was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Thursday 5 May 2017.

[5] On 4 May 2017, Ms Gerchow filed submissions in respect of her application for remedy for unfair dismissal. Ms Gerchow did not address East Coast Pilot Services’ s.399A application per the direction contained in the correspondence of 28 April 2017 or provide a copy of her submissions to East Coast Pilot Services. The material was forwarded by the Commission to East Coast Pilot Services today.

[6] 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.

[7] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Gerchow’s propensity thus far to engage with the Commission only on her terms, together with her ignoring of the direction to respond to the s.399A application is not to her credit. It is Ms Gerchow who has made the application for remedy for unfair dismissal and she must bear responsibility for attending to the tasks required of her in the Commission’s management of her claim. Nonetheless, despite Ms Gerchow failing to respond to East Coast Pilot Services’ s.399A application, she filed material relating to her substantive application on 4 May 2017, thereby demonstrating a willingness to prosecute her case. Fortunately for her, she did so with there being what I consider to be sufficient time available for East Coast Pilot Services to respond and without the hearing dates having to be disturbed.

[8] In finely balanced circumstances, I have determined in this case not to exercise my discretion under s.399A(1)(b) of the Act and dismiss East Coast Pilot Services’ s.399A application. An order giving effect to this decision will be issued today.

[9] Through no fault of East Coast Pilot Services, it has received Ms Gerchow’s material only today. I therefore amend the directions for the filing of East Coast Pilot Services’ reply material, such that it will now be due by 4.00pm, Monday 29 May 2017. The hearing will proceed as scheduled.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593060>