Kirstyn Renall v All Crowd Catering Pty Ltd

[2018] FWC 3684

[2018] FWC 3684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kirstyn Renall
v
All Crowd Catering Pty Ltd
(U2018/1777)

COMMISSIONER BISSETT MELBOURNE, 21 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 22 February 2018, Ms Kirstyn Renall 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 Renall said that her employment had been terminated by All Crowd Catering Pty Ltd T/A All Crowd Catering (All Crowd) on 1 February 2018.

[2] The matter was listed for conciliation on 17 April 2018, however the matter did not settle.

[3] On 24 April 2018, directions were issued by the Commission. Ms Renall was directed to file material in support of her application by no later than noon on 14 May 2018. All Crowd was directed to file its material in opposition to the application by no later than noon on 4 June 2018. The directions were sent to Ms Renall’s nominated email and postal addresses. Ms Renall failed to file any material.

[4] In the afternoon of 14 May 2018, the Commission attempted to contact Ms Renall by telephone regarding her overdue submissions. As she did not answer, a voicemail message was left requesting she return the Commission’s call. On the same day, an SMS message was sent to Ms Renall that stated “The … Commission would like to remind you that written submissions for your unfair dismissal application were due to be filed and served by noon today. Please call [the Commission] to discuss further”.

[5] On 15 May 2018, the Commission again attempted to contact Ms Renall by telephone regarding her overdue submissions. Ms Renall did not answer and a voicemail message was left requesting she return the Commission’s call. A further SMS message was sent to Ms Renall reminding her that her submissions were due to be filed the previous day, and requesting she contact the Commission to discuss further. On the same day, email correspondence was also sent to Ms Renall confirming that the Commission had not yet received her submissions and requesting that she contact the Commission to advise when she intended to file her submissions. The correspondence further warned that if the Commission did not receive a response, the matter would be listed for a non-compliance hearing on 18 May 2018.

[6] On 16 May 2018, further email correspondence was sent by the Commission to Ms Renall confirming that the Commission had not yet received her submissions and that if the Commission did not receive an extension request or submissions by 2.00pm that day, the matter would be listed for a non-compliance hearing on 18 May 2018. Ms Renall did not file her submissions or an extension request. Later that day, a Notice of Listing was sent to the parties by email confirming a non-compliance hearing would proceed on 18 May 2018. The Notice of Listing was also sent to Ms Renall’s nominated postal address.

[7] On 17 May 2018, an SMS message was sent to Ms Renall confirming the date and time of the non-compliance hearing that was proceeding the following day. The message also advised that Ms Renall would receive a call at the commencement of the hearing.

[8] On 18 May 2018, a non-compliance hearing proceeded before Deputy President Clancy. Ms Renall could not be contacted for the hearing. All Crowd made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Ms Renall’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted All Crowd’s oral application

[9] Following the non-compliance hearing, correspondence was sent to Ms Renall’s nominated email and postal addresses advising her of All Crowd’s s.399A application. Ms Renall was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 25 May 2018. The correspondence stated that if the Commission did not receive a response, Ms Renall’s application for relief from unfair dismissal would be dismissed.

[10] On 22 May 2018, Ms Renall contacted the Commission by telephone. She advised that she had received an SMS message from the Commission and was wondering what the message was in relation to. The Commission advised Ms Renall that as per the Notice of Listing sent to her on 24 April 2018 she had failed to file her submissions by 14 May 2018, and a subsequent non-compliance hearing was held on 18 May 2018. Ms Renall was advised that the most recent correspondence sent by the Commission directed her to file a response to All Crowd’s s.399A application by 25 May 2018. The Commission advised the email and postal addresses to which the correspondence was sent and Ms Renall confirmed these addresses were correct. Ms Renall advised that she had not received any correspondence from the Commission. The Commission advised Ms Renall that it would resend the correspondence to her regarding All Crowd’s s.399A application and stressed the importance of filing a response before the deadline of 25 May 2018. Mr Renall was advised that she should contact the Commission if she did not receive the email. Following the call, the Commission resent the s.399A correspondence to Ms Renall by email.

[11] On 23 May 2018, Ms Renall contacted the Commission by telephone to advise that she had not received the correspondence as discussed the previous day. The Commission again advised the email address it had sent the correspondence to, which she confirmed to be correct. The Commission advised that it would again resend the correspondence and reiterated the importance of filing a response as to why her matter should not be dismissed by 25 May 2018. Following the call, the Commission resent the s.399A correspondence to Ms Renall by email. Later that day, Ms Renall replied to confirm receipt of the Commission’s email.

[12] On 25 May 2018, Ms Renall contacted the Commission by telephone to advise that whilst she had received the Commission’s email, she could not open the attached letter. Ms Renall asked if she could file her response in the form of an email and the Commission confirmed that this would be suitable. Ms Renall was asked to send email correspondence to the Commission explaining why she believed her matter should not be dismissed and to provide supporting documentation if applicable. Later that day, Ms Renall filed her response to All Crowd’s s.399A application by email.

[13] On 31 May 2018, the Commission sent email correspondence to All Crowd advising that Ms Renall had filed material in response to its s.399A application and requesting that it provide submissions in reply by 7 June 2018.

[14] On 7 June 2018, All Crowd filed its submissions in reply.

Submissions of Ms Renall

[15] Ms Renall submitted a request that her case be continued as she has only recently discovered that she had not received any of the Commission’s correspondence since the conciliation on 17 April 2018. She stated that she was unaware that further information had been sent to her as she had not received any emails from the Commission, which was confirmed by her having to request that the Commission resend the correspondence regarding All Crowd’s s.399A application.

[16] Ms Renall submitted that she had also been advised by the Commission that correspondence had been sent to her by post, however she advised that the complex she “had been staying in has had some serious issues with [vandalism] of the mail boxes” causing “major disruption for a number of … tenants” without them realising. Ms Renall stated that the complex manager would be happy to provide a letter in support of this. She advised that she has now moved home and has changed all notification from the Commission to her email address to hopefully rectify these issues going forward.

[17] Further, Ms Renall submitted that she is still attempting to seek legal assistance in her matter and this has been frustrating as she has been turned away by four companies for not earning enough during her employment with All Crowd. She says she is “beyond distressed that [her] income seems to be of constant relevance as opposed to the situation itself” and states that the legal representatives she has discussed her matter with do not seem to be interested in what she believes to be the important facts of her case. Ms Renall says she is awaiting contact from Community Legal Services “in hope to find someone empathetic to [her] cause” and states that as she is a New Zealander she is not entitled to legal aid support.

[18] Finally, Ms Renall submited:

“I am asking for the opportunity to complete this course of action as I was a hard working employee for this company and did my best at every opportunity and was placed in a very difficult situation following my employers actions over my period of leave and then when I was dismissed. It has been a very stressful situation financially and emotionally and I would like to be able to see it through as I intended once I can secure legal representation.”

Submissions of All Crowd

[19] In reply, All Crowd submitted Ms Renall’s claim is that a lack of access to technology over an extensive period was the reason for her non-compliance with directions and non-attendance at the non-compliance hearing. All Crowd says that at the non-compliance hearing on 18 May 2018 numerous attempts were made to contact Ms Renall and that it seems surprising that she did not call back in a shorter period of time as “[m]ost people these days are never too far from their mobile phone”. Further, it said from the date directions were issued on 24 April 2018, to the date the most recent correspondence was received from Ms Renall, her Facebook page contains one entry from 6 May 2018, and All Crowd therefore submits that technology was available to her and “[if] Facebook entries can be received so should emails”.

[20] All Crowd further submitted that the parties were advised at the conclusion of the unsuccessful conciliation that parties would be receiving further directions from the Commission by email. All Crowd said that Ms Renall should have been “on watch” for these documents from the Commission.

[21] All Crowd said that Ms Renall claiming that she did not comply with directions as she has been unable to obtain legal representation should not be considered as a reason to grant a continuation of this matter as an applicant is able to be self-represented in this jurisdiction. Finally, All Crowd submits that s.399A of the Act is “quite clear” and in advising that it intends to seek costs if this matter continues, it submits:

“The Applicant has failed to attend a … hearing conducted by the [Commission] and the Applicant has failed to comply with a Direction or order by the … Commission.…This matter should be dismissed.”

Consideration

[22] Section 399A of the Act 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.

....

(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.

[23] The unfair dismissal provisions are found in Part 3-2 of the Act. Section 381 sets out the Object of this Part of the Act:

381 Object of this Part

(1) The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

[24] The power to dismiss an application under s.399A of the Act must be considered in light of this Object. The processes of the Commission in reminding parties of the due date of submissions and other material and the timely listing of matters for a non-compliance hearing if material is not filed are directed at ensuring that applications are dealt with quickly, flexibly and informally. The very nature of a referral of an application to a non-compliance hearing should not be seen as confirmation that an application will be dismissed because of some failure to comply with directions of the Commission. To do so would make void the discretion granted to the Commission under s.399A.

[25] In this case I am aware that Ms Renall did not only fail with the initial direction but also to attend the non-compliance hearing. This, however, should be balanced against her response to the Commission’s advice that an application had been made pursuant to s.399A of the Act to dismiss her application, that she did file a submission in response to that application and she did explain the reason for non-compliance. That she did not receive the next correspondence from the Commission to her via email appears to support her submission that she did not receive some earlier correspondence.

[26] I appreciate that Ms Renall’s actions have caused an inconvenience to All Crowd although I do note that it has not, to date, been required to file any submissions or evidence such that I consider the inconvenience to be minimal. However, I am not convinced that Ms Renall has unreasonably failed to comply with directions or attend the non-compliance hearing. It is not enough that an applicant fails to comply or fails to attend – it is that this failure must be considered unreasonable. Ms Renall’s failures cannot, at this stage, be described as unreasonable. In these circumstances I am satisfied that, in the interests of a fair go all round, the matter should be allowed to proceed.

[27] In her application form Ms Renall indicated that she would like to receive material from the Commission via email. In such circumstances she is reminded that it is her responsibility to ensure that her email system is working, including that Commission emails are not blocked or otherwise being sent to a “junk” folder.

[28] In her submissions as to why her application should not be dismissed Ms Renall indicated that she “would like to be able to see it through as I intended once I can secure legal representation.” Ms Renall should be aware that the Commission will not set directions based on when she might secure legal representation. The Commission will issue new directions and Ms Renall will be required to comply with those directions. If she chooses not to proceed with her application then she should notify the Commission as soon as possible of this decision.

[29] For these reasons the application of All Crowd to dismiss the application of Ms Renall is dismissed. Further directions will be issued with respect to the application.

COMMISSIONER

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