Kristy Douglas v Bunnings Group Limited

[2014] FWC 2796

[2014] FWC 2796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristy Douglas
v
Bunnings Group Limited
(U2014/4)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2014

Application for relief from unfair dismissal.

[1] Ms Kristy Douglas was employed by Bunnings Group Limited (Bunnings) until her employment was terminated on 13 December 2013.

[2] Ms Douglas was directed to file material in support of her application by 24 March 2014. Her application was listed for hearing on 28-30 April 2014. On 23 March 2014, Ms Douglas sought an extension of time to file her material until after 6 June 2014 as she was studying and had to attend class for 32 hours per week, complete 120 hours of work placement and complete assignments.

[3] Ms Douglas was given an extension until 28 March 2014 to file material in support of her application. Ms Douglas did not file material as required by the directions and her application was listed for a non-compliance hearing on 4 April 2014.

[4] On 1 April 2014 Ms Douglas advised that she was unable to attend the non-compliance hearing as she had classes and she had been unaware that her application to have her matter adjourned until after 6 June 2014 had been rejected and that she was required to file by 28 March 2014. She advised that she was unable to complete the required paper work or participate in any conference calls and that she may have to cancel her application. Ms Douglas was advised that the matter remained listed for non compliance.

[5] At the non-compliance hearing, Bunnings made a section 399A application to dismiss Ms Douglas’ claim because she had failed to comply with directions of the Fair Work Commission (the Commission). Commissioner Bissett waived compliance with the Rules and accepted the application. Ms Douglas was advised of the section 399A application on 4 April 2014 and was provided with an opportunity to respond to the application.

[6] Ms Douglas responded on 11 April 2014 and repeated the information set out in her earlier email requesting an adjournment. Ms Douglas said she had not attended the non-compliance telephone hearing because she could not be absent from class.

[7] I accept Ms Douglas’ explanation of why she did not attend the non-compliance hearing.

[8] I do not accept Ms Douglas’ explanation of her failure to comply with the directions of the Commission to file material in support of her claim. It is not unusual for a dismissed employee to have other matters that they need to deal with after the dismissal. Dismissed employees are required to seek other work. Employees may also undertake additional training particularly if their attempts to find work are unsuccessful. This does not absolve them from their obligation to comply with the Commission’s directions. There was no satisfactory explanation of why this was not done other than Ms Douglas had 32 hours of contact time and some assignments to complete. I do not accept that Ms Douglas had insufficient time to complete the necessary documentation.

[9] The Commission, in dealing with unfair dismissal claims, is required to provide a fair go to both employers and employees. Part of that is hearing and determining matters promptly whilst providing procedural fairness to both parties.

[10] In this case, Ms Douglas has not complied with directions. Bunnings has applied to have her application dismissed.

[11] Section 399A of the Fair Work Act 2009 empowers the Commission to dismiss an application if an applicant fails to comply with directions of the Commission.

[12] In this matter, I have decided not to exercise my discretion to dismiss the application. My reasons for doing so are as follows:

[13] This is not a case where Ms Douglas has simply ignored the directions of the Commission. She made an application for an adjournment prior to the compliance date. She states that she did not receive the notice of the extension of time until after that compliance date had passed. She was not able to attend the non-compliance hearing for a reason I have accepted. I therefore consider it would be unfair to not allow Ms Douglas an opportunity to have her application heard and determined.

[14] However in deciding not to immediately dismiss Ms Douglas’ application is not to excuse Ms Douglas’ conduct. I am prepared however to provide her with a further opportunity to file material with the Commission. Directions to that effect will be issued with this decision. If Ms Douglas does not comply with these directions, Bunnings may make a further application to dismiss the application.

DEPUTY PRESIDENT

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