Leanne Brown v Adelaide Community Healthcare Alliance Incorporated

[2019] FWC 2703

[2019] FWC 2703

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Leanne Brown
v
Adelaide Community Healthcare Alliance Incorporated
(U2019/300)

COMMISSIONER HAMPTON ADELAIDE, 18 APRIL 2019

Application for an unfair dismissal remedy – failure of applicant to comply with directions – s.399A application to dismiss made by employer – no reasonable explanation – unreasonable act or omission – discretion exercised – unfair dismissal application dismissed.

[1] Ms Leanne Brown made an application under s.394 of the Fair Work Act 2009 (the FW Act) for an alleged unfair dismissal by her former employer, Adelaide Community Healthcare Alliance Incorporated (ACHA).

[2] The unfair dismissal application was not resolved at conciliation and was subsequently allocated to the Commission as currently constituted for determination.

[3] In this matter, Ms Brown was represented, with permission, by Mr Kerin of Grope Hamilton Lawyers and ACHA was represented, with permission, by Mr Plummer of Healthscope Limited – a service provider to the Respondent.

[4] A directions conference to begin the determination of the unfair dismissal matter was conducted on 13 March 2019. Amongst other directions issued by the Commission, Ms Brown was directed to file and serve by 1 April 2019, an outline of submissions and any evidentiary material, including witness statements and any other written materials to be relied upon in her unfair dismissal application. 1 All parties were also advised as part of the directions that:

“7. Compliance with these directions is mandatory and a failure to do so may disadvantage the party concerned without further notice. ... …”

[5] The unfair dismissal application was listed for hearing on 6 and 7 May 2019.

[6] No materials were filed on behalf of Ms Brown as required by the directions. In response to the Commission’s enquiries, on 1, 3 and 11 April 2019 Mr Kerin advised that he was unable to obtain instructions despite contact with Ms Brown. As a result, no application was made to seek some modification of the directions and the applicant continued to be non-compliant.

[7] On 15 April 2019, ACHA made an application under s.399A of the FW Act for the unfair dismissal application to be dismissed.

[8] Section 399A of the FW 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.”

[9] ACHA contended in the application that Ms Brown has unreasonably failed to comply with the directions and no grounds to mitigate or explain that action had been advanced. Further, the Commission should exercise its discretion to dismiss the originating application.

[10] The s.399A application was considered at a directions conference conducted today. Mr Kerin continued to represent Ms Brown and advised that despite being in contact with the applicant and advising of the s.399A application, he had not been given instructions to file any materials in the unfair dismissal matter or to provide a response in relation to the application to dismiss that matter. Mr Kerin had no instructions to consent or oppose the s.399A application, and in effect, acknowledged that he could not provide any reasonable basis to resist the application.

[11] The s.399A application has been made by the employer as required by s.399A(2) of the FW Act.

[12] The evident purpose of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse.²

[13] Accordingly in this case, the Commission may dismiss the unfair dismissal application pursuant to s.399A(1) of the FW Act if satisfied that Ms Brown has unreasonably failed to comply with the directions issued by the Commission in relation to the application.

[14] Ms Brown has failed to comply with the directions of the Commission and no reasonable basis for doing so has been advanced in this matter. This conduct is unreasonable and meets the requirements of s.399A(1)(b) of the FW Act.

[15] In terms of the discretion that then arises, Ms Brown has also been provided with every reasonable opportunity to advance her case, and has not done so. Indeed, despite the best efforts of Mr Kerin, Ms Brown has failed to engage with the obligations regarding her application and has, in effect, abandoned the matter. In all of the circumstances I consider that it is appropriate to exercise my discretion to dismiss the unfair dismissal application.

[16] Accordingly, Ms Brown’s unfair dismissal application is dismissed. An order 3 to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

T Kerin of Grope Hamilton Lawyers, with permission on behalf of Ms Brown, the Applicant.

R Plummer of Healthscope Limited, with permission, on behalf of Adelaide Community Healthcare Alliance Incorporated, the Respondent.

Hearing details:

2019

By Telephone

March 13

April 18.

Printed by authority of the Commonwealth Government Printer

<PR707217>

 1   Direction No 1.

2 See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

 3   PR707224