Kim Samantha Foster v Mackillop Family Services
[2023] FWC 1349
•9 JUNE 2023
| [2023] FWC 1349 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kim Samantha Foster
v
Mackillop Family Services
(U2023/2329)
| COMMISSIONER MIRABELLA | MELBOURNE, 9 JUNE 2023 |
Application for an unfair dismissal remedy.
Ms Kim Samantha Foster has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (the application).
This matter was allocated to me on 24 April 2023 for case management. On 26 April 2023, the matter was listed for mention/conference on 28 April 2023. At the mention/conference, Ms Foster requested an adjournment on the basis that she had taken strong pain medication an hour before the mention/conference. I adjourned the mention/conference to 8 May 2023.
Later that day, parties were emailed a notice of listing/directions document which listed the matter for mention/conference on 8 May 2023 and required Ms Foster to file submissions and evidence by 4:00pm on 22 May 2023. The document included the following note:
“Non-compliance: The Commissioner will not accept material that is filed late unless an extension has been granted by the Commissioner before it was due. Requests for an extension of time must be made in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.”
The parties attended the mention/conference on 8 May 2023 where they advised that they did not take issue with the dates for filing provided in the directions.
The parties attended a conciliation before another member of the Commission on 12 May 2023, but the matter did not resolve.
Ms Foster did not file her submissions and evidence by the deadline.
Ms Foster contacted the Commission on 23 May 2023 advising, amongst other things, that she had been unwell, her children were unwell, she was seeking police intervention due to being stalked and she had initiated proceedings in the Magistrates’ Court. She also advised the following:
“What I should have done is apply for the general protections act not the case for unfair dismissal
…
I understand now and; am aware that I cannot do this through the case for Unfair Dismissal
…
I will not be persisting with attempting to defend myself with the case of Unfair Dismissal any more than I have done so far”
On 24 May 2023, my associate replied to Ms Foster’s email advising that non-compliance with the directions may lead to dismissal of the application pursuant to s.587(1)(c) on the basis that the application has no reasonable prospect of success. The email also sought clarification from Ms Foster as to whether, in light of the comments made in her email, she was intending to discontinue her application.
On the morning of 25 May 2023, I spoke to Ms Foster over the phone, and she advised that she was not withdrawing the application and in response to my question as to whether she is going to file any submissions, she replied that she was not in the frame of mind to have this conversation.
That same morning, Ms Foster sent an email to my chambers reiterating that she has no intention of discontinuing the application and that she cannot communicate with me today as she is “in the process of applying for PSIO’s and the reinstatement of undertakings”.
On the afternoon of 25 May 2023, my associate sent an email to Ms Foster reiterating the requirement to file submissions and evidence, drawing her attention to sections 587 and 399A of the Act, advising that non-compliance with the directions has the potential to impact on the continuation of proceedings and directing Ms Foster to seek leave to file her materials outside the deadline and to provide an explanation for her non-compliance. A response to the email was sought by 4:00pm on 26 May 2023. The email advised that if no response was received, the application may be dismissed. The email further sought Ms Foster’s advice as to whether she was intending to file any material, noting her earlier correspondence with chambers.
At 5:09pm on 26 May 2023, Ms Foster filed a statutory declaration which stated that she was experiencing stress from the neglect of her insurer and adverse action, which she stated she cannot raise in the Commission because of the 21-day time limit, as well as experiencing “economic violence” and stalking leading to proceedings in the Magistrates’ Court and the Victorian Civil and Administrative Tribunal (VCAT). At 5:12pm, Ms Foster emailed a certificate of capacity with respect to a back injury and anxiety.
On 29 May 2023, my associate replied to Ms Foster advising that the certificate of capacity did not preclude her from participating in Commission proceedings and, accordingly, that I was considering dismissing the application under s.587 of the Act. Ms Foster was directed to explain by 1 June 2023 why her application should not be dismissed, and I invited the respondent, Mackillop Family Services (Mackillop), to provide submissions on the matter.
On 30 May 2023, Ms Foster sent an email to chambers requesting that I recuse myself on the basis that “the applicant seeks to provide evidence on why this hearing has been held on unreasonable grounds” and “the applicant finds the Commissioner and associates treating the applicant in unfair terms”. Ms Foster also advised that she was seeking to apply for a general protections application and that she understood she had missed the 21-day time limit.
That day, my associate replied advising that I understood her email to constitute a notice of discontinuance, noting that she intended to file a general protections application, and attached the form required to file such an application.
On 31 May 2023, Ms Foster replied to this email reiterating her request for me to recuse myself, advising that she is not being treated fairly and that I was taking advantage of her vulnerability. Ms Foster further advised that she did not want to discontinue the application and will file a general protections application because she believes that both the unfair dismissal and general protections application cover the issues she would like to raise. She also stated she had been informed through legal advice that it is not common practice to file both applications.
That same day, my associate replied to Ms Foster’s email advising that I was of the view there are no grounds for me to recuse myself. My associate also pointed Ms Foster towards Commission materials relating to multiple actions regarding the one dismissal.
On 5 June 2023, Ms Foster sent a reply email to chambers advising that she had been involved in “serious family issues involving three attendances of Emergency Services in the last two weeks”. Ms Foster advised she does not accept my decision not to recuse myself and suggested that there was a conflict of interest between the Commission and Mackillop. Ms Foster questioned her mental capacity to respond due to sustaining another injury.
That afternoon, Mackillop filed submissions in support of the Commission dismissing the application under s.587(1)(c) of the Act.
Later on 5 June 2023, my associate sent an email to Ms Foster reiterating my decision not to recuse myself because she had provided no grounds for such a recusal and I confirmed that I did not have nor have had any connection or association with Mackillop. The email further granted Ms Foster an additional period within which to provide submissions on why her application should not be dismissed, the deadline being 4:00pm on 9 June 2023.
Ms Foster sent an email on 7 June 2023 stating that she could not enter or exit her driveway and had been harassed by her landlord’s family members. She further stated she was involved in several VCAT matters and a matter before the Workplace Injury Commission and blamed her insurer for causing her to miss the 21-day time limit for filing a general protections claim. As at 4:00pm on 9 June 2023, no further response had been received from Ms Foster.
Mackillop’s submissions
Mackillop makes the following submissions:
“31. The Respondent seeks that the Commission exercise its discretion to dismiss the Application pursuant to section 587(1) of the FW Act for failure by the Applicant to diligently prosecute the Application or otherwise comply with the directions of the Commission.
32. In light of the above authorities, the Respondent submits:
32.1 the grounds upon which the Commission may dismiss an application made under s.394 of the FW Act are not limited to the grounds set out in the sub-paragraphs of s.587(1) of the FW Act;
32.2 the Commission has power, and ought to exercise that power, under s.587(1) of the FW Act, to dismiss the Application because of the repeated non-compliance by the Applicant with the 28 April Direction, 25 May Direction and 29 May Direction;
32.3 the Commission’s power under s.587(1) of the FW Act should be exercised as having regard to the history set out above, specifically:
32.3.1 after the issuance of the 28 April Directions, the Applicant did not indicate that she did not understand what was required of her nor did not indicate that she required additional time in which to file her materials because she was incapacitated;
32.3.2 the Applicant did not communicate any reason for the delay in filing her materials as required by the 28 April Directions or request an extension of time to do so. Even when directed by the Commission that she would be required to seek leave to file her materials late, she still has not done so nor has she advised when she would be in a position to do so;
32.3.3 the Applicant was put on notice on 24, 25 and 29 May 2023 that the Application was at risk of being summarily dismissed, yet the Applicant failed to be responsive to the Commission’s further directions;
32.3.4 to the Respondent’s knowledge, the Applicant did not, and has not, provided any medical or other evidence establishing an inability to comply with the 28 April Direction, 25 May Direction or 29 May Direction, noting that the statutory declaration and CoC do not establish any incapacity on the part of the Applicant to participate in this proceeding; and
32.3.5 the Applicant has failed to comply with the Commission’s directions regarding filing of materials (28 April Direction, 25 May Direction or 29 May Direction).
32.4 the Applicant’s conduct in failing to respond to various correspondence from the Commission, and failing to file any material in the matter beyond her initial Form F2, demonstrates an unwillingness to participate in the proceeding she has commenced. That is, the Applicant has shown no willingness to prosecute her Application and has taken no steps to do so;
32.5 the Applicant has been capable of communicating in some detail with the Commission and the Respondent via email in the period during which she was required to comply with the Commission’s directions. This demonstrates that there was no impediment, medical, personal or otherwise to the Applicant complying with the 28 April Direction, 25 May Direction and 29 May Direction;
32.6 although the Commission is not required to consider the merits of the Application for the purposes of s.587(1) of the FW Act, the Respondent submits that the Application lacks merit and this further supports the exercise of the Commission’s discretion under s.587(1) of the FW Act. Specifically, the Applicant's dismissal was not harsh, unjust or unreasonable pursuant to section 387 of the FW Act because:
32.6.1 the Respondent had a valid reason for the dismissal which constituted a ‘valid reason’ within the meaning of s.387(a) of the FW Act, namely the Applicant’s lack of capacity to perform the inherent requirements of her role as a Residential Care Worker because she did not hold a valid NDIS Workers Screening Check as required under the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 and Worker Screening Act 2020 (Vic);
32.6.2 despite having over a year to do so, the Applicant failed to provide any evidence that she held a valid NDIS Workers Screening Check;
32.6.3 the Applicant was given multiple opportunities to respond to the reasons for her dismissal which she did verbally on 2 February 2023;
32.6.4 the Applicant was given the opportunity to have a support person present during discussions relating to her dismissal but chose not to do so; and
32.6.5 the other factors enumerated in section 387(e) to (h) are neutral and do not weigh upon the merits of the Application.
32.7 the circumstances in this matter are analogous to those in the cases referred to at paragraphs 23, 25 and 26, where the Commission found it appropriate to dismiss an application under the FW Act for want of prosecution where an Applicant has repeatedly failed to comply with the directions of the Commission;
32.8 the Applicant’s conduct in failing to prosecute her case in an efficient and timely manner is inconsistent with the objects of Part 3-4 of the FW Act to ensure a “fair go all round is accorded to both the employer and employee concerned”. Any extension or indulgence on the part of the Commission to permit the Applicant to file materials would prejudice the Respondent, which has, and continues to, incur time and costs in defending the Application;
32.9 there are no reasons not to exercise discretion to dismiss the Application given that reasonable opportunities for compliance have been provided to the Applicant in circumstances where the Applicant’s conduct appears she does not have any intention of following through with the Application; and
32.10 the Applicant has been afforded considerable time to contact the Commission to seek an extension of time to comply with the 28 April Directions, 25 May Direction and 29 May Direction but has not done so. On the contrary, the Applicant (despite being informed of the risk that the Application may be dismissed for non-compliance with the Commission’s directions) proceeded to correspond with the Commission on a number of occasions about other matters, including her intention to file an application under s.365 of the FW Act and her repeated requests that Commissioner Mirabella recuse herself. The Applicant’s conduct creates a a reasonable inference that she has deliberately chosen not to comply with the 26 May Direction and 29 May Direction.”
Section 587 of the Act provides that:
“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
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The words “Without limiting when the FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
I consider that as Ms Foster has failed to prosecute her application, her application has no reasonable prospects of success. Accordingly, the application is dismissed under s.587(1)(c) of the Act. An order giving effect to this decision will be issued shortly.
COMMISSIONER
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