Marianne Alexander v Santosheema Pty Ltd T/A Cardiac Care Centre

[2015] FWC 2544

[2015] FWC 2544 [Note: An appeal pursuant to s.604 (C2015/5756) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marianne Alexander
v
Santosheema Pty Ltd T/A Cardiac Care Centre
(U2014/16217)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Marianne Alexander alleged that the termination of her employment by Santosheema Pty Ltd (Santosheema) was unfair.

[2] The application was referred to conciliation but the matter did not settle.

[3] Ms Alexander was directed to file material in support of her application by 23 February 2015. Ms Alexander did not comply with this direction.

[4] On 24 February 2015, Ms Alexander requested an extension of time to file her material until 2 March 2015 as she was seeking legal advice and her appointment was on 27 February 2015. Santosheema advised that it did not think she should receive an extension of time.

[5] Directions were then issued for Ms Alexander and Santosheema to file material by noon on 16 March 2015. The hearing was set down for 4 May 2015, but was subsequently brought forward to 13 April 2015 as a witness for Santosheema was not available in May.

[6] Santosheema filed material in accordance with the directions but Ms Alexander did not. On 17 March 2015, a telephone message was left for Ms Alexander about her submissions and an email was sent the same day.

[7] The matter was then listed for a non compliance hearing on 20 March 2015. Ms Alexander did not participate in the non compliance hearing and at that hearing Santosheema made a verbal application under section 399A of the Fair Work Act 2009 (the Act) for the application to be dismissed due to non compliance. Commissioner Johns waived compliance with the rules and accepted the application.

[8] On the same day, Ms Alexander was directed to file and serve submissions by close of business on 27 March 2015 providing reasons why the Fair Work Commission should not dismiss her application and any evidence or documentary material to support her reasons. She was advised that if she had been unwell she needed to provide a medical certificate.

[9] On 27 March 2015, Ms Alexander sent an email saying “please do not dismiss your [sic] application due to being unwell.” She attached a medical certificate. The medical certificate was dated 25 March 2015 and advised that she was unfit for work from 20 March 2015 to 26 March 2015. As the medical certificate did not explain why Ms Alexander had not complied with directions to file her material by 16 March 2015, the matter was listed for a telephone conference to consider the application to dismiss.

[10] At the hearing, Ms Brahmbhatt submitted that the matter should be dismissed because Ms Alexander had not complied with directions. Ms Brahmbhatt noted that Ms Alexander had already been given an extension and had not complied. Further, Ms Brahmbhatt considered that Ms Alexander was wasting everyone’s time.

[11] Ms Alexander relied upon her medical certificate. Ms Alexander was not able to satisfactorily explain why her illness which occurred from 20 March 2015 could explain her failure file her material by 16 March 2014.

[12] Ms Alexander said she was currently unwell but accepted that this did not explain her non compliance.

[13] Ms Alexander also said she had had to leave her accommodation as a result of losing her job and was now living out of a suitcase.

[14] Ms Alexander said that her material had been prepared but she was unaware that she could file it after the compliance date.

Consideration

[15] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been non compliance with directions of the Commission. 1

[16] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[17] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited. 3

[18] In summary, that decision said:

• the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[19] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Consideration

[20] Ms Alexander has been indifferent to her obligations to file material in accordance with the directions of the Commission. Not only has she not complied, she has failed to provide any reasonable explanation for her failure to comply. She did not attend the telephone conference to deal with her non compliance and she did not respond to the opportunity to explain her non compliance. The medical certificate did not advise that she was incapable of filing the material. Further, there was no evidence that she was ill at the relevant time.

[21] I can understand Ms Brahmbhatt’s frustration. She has complied with directions and further delay will mean that this matter cannot be heard until after she returns from leave.

[22] Ms Alexander had failed to comply with Commission directions. Having made that finding, it is necessary to decide if I will exercise my discretion to dismiss the application.

[23] Ms Alexander has advised her material is ready to file. In those circumstances, I am prepared to give her until 5pm on 14 April 2015 to file and serve her material. I will not dismiss the application to dismiss at this time, but if Ms Alexander does not file and serve her submissions and witness evidence as directed, I will dismiss her application without any further reference to her.

DEPUTY PRESIDENT

Appearances:

Ms M Alexander on her own behalf.

Ms S Brahmbhatt for the Respondent.

Hearing details:

2015.

Melbourne and Sydney via telephone:

13 April.

 1 Fair Work Act 2009, section 399A.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [162-163].

 3   PR956665.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR563038>