Marina Dekleva v Altronic Distributors Pty Ltd

[2022] FWC 1118

[2022] FWC 1118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marina Dekleva
v

Altronic Distributors Pty Ltd

(U2022/3088)

DEPUTY PRESIDENT COLMAN MELBOURNE, 11 MAY 2022

Application under s 399A – failure to comply with directions – application dismissed

1. This decision concerns an application made under s 399A of the Fair Work Act 2009 (Act) by Altronic Distributors Pty Ltd (company) to dismiss an unfair dismissal application brought against it by Ms Marina Dekleva.

1. On 6 April 2022, I issued directions which required Ms Dekleva to file and serve an outline of submissions and any witness statements or other material on which she intended to rely in support of her application by 20 April 2022. Ms Dekleva failed to do so. On 20 April 2022, I wrote to Ms Dekleva, noting that she had not filed her materials. No response was received from Ms Dekleva.

1. I listed Ms Dekleva’s application for a non-compliance hearing at 10.00am on 6 May 2022. On 3 May 2022, Ms Dekleva sent to my chambers a message in which she stated that she wanted ‘all communication [to] be done via email, as this has been very detrimental and stressful to my mental and physical health’. She attached a copy of her unfair dismissal application and requested that ‘Fair Work make a final ruling on my behalf based on all information I have supplied.’

1. Ms Dekleva did not attend the non-compliance hearing on 6 May 2022. At the hearing, the company made an application under s 399A for the Commission to dismiss Ms Dekleva’s application on the basis that she had unreasonably failed to comply with the Commission’s directions of 6 April 2022 and had unreasonably failed to attend the non-compliance hearing. I waived the requirement of the Fair Work Commission Rules (Rules) that the s 399A application be lodged in a form F1 document. I did so because the grounds for the s 399A application were brief and straightforward. I advised the company that it was necessary for Ms Dekleva to be made aware of the application under s 399A and to be given an opportunity to respond to it.

1. Shortly after the conclusion of the non-compliance hearing on 6 May 2022, my associate wrote to Ms Dekleva on my behalf, advising her that at the non-compliance hearing the company had made an application under s 399A to dismiss her unfair dismissal application on the grounds that she had unreasonably failed to comply with the Commission’s directions of 6 April 2022, and that she had unreasonably failed to attend the non-compliance hearing. The correspondence noted that I had waived the requirement of the Rules that a form F1 document be filed. Ms Dekleva was directed to file in the Commission any submission she wished to make in relation to the company’s application under s 399A by 5.00pm on Tuesday 10 May 2022, whereafter I proposed to determine that application on the papers. No further correspondence was received from Ms Dekleva.

1. Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant has unreasonably failed to attend a hearing held by the Commission in relation to the application (s 399A(1)(a)) or has unreasonably failed to comply with a direction or order of the Commission relating to the application (s 399A(1)(b)).

1. Ms Dekleva failed to comply with my directions of 6 April 2022 and failed to attend the non-compliance hearing in relation to her application on 6 May 2022. The question is whether she did so unreasonably, and whether I should then exercise my discretion to dismiss her application under s 399A.

1. I understand Ms Dekleva’s message to my chambers of 3 May 2022 to have requested that there be no hearing in her matter, and that the Commission determine her unfair dismissal application on the papers. I infer from the message that Ms Dekleva also did not want to attend the non-compliance hearing for reasons related to her health. But no medical evidence was submitted by Ms Dekleva. I am not satisfied that Ms Dekleva’s email of 3 May 2022 offers an adequate explanation of her failure to attend the non-compliance hearing. Further, I do not consider that Ms Dekleva has offered any reasonable explanation for her failure to comply with the directions of 6 April 2022. If Ms Dekleva had paid proper attention to her application, she would not have waited until her materials were 13 days overdue before contacting the Commission and requesting that a final decision be made based on her F2 application. Again, I am not satisfied that Ms Dekleva’s message of 3 May 2022 offers a reasonable explanation. Based on the information before me, there is no good reason why Ms Dekleva failed to comply with my directions of 6 April 2022. I consider that Ms Dekleva’s failure to comply with my directions and attend the non-compliance hearing was unreasonable.

1. My discretion to dismiss Ms Dekleva’s unfair dismissal application under s 399A has been enlivened. I consider it appropriate to exercise the discretion in this case. The Commission issues directions in relation to unfair dismissal applications in order to facilitate a fair and transparent determination of those matters. Parties must comply with the Commission’s directions, not determine for themselves whether they will do so. Ms Dekleva has been afforded a reasonable opportunity to explain her failure to comply with my directions and her failure to attend the non-compliance hearing and has failed to offer a reasonable explanation.

1. Finally, based on the materials before the Commission, I see no merit in Ms Dekleva’s application. Ms Dekleva stated in her F2 document that she had been suffering from a mental health condition and at the time of her dismissal she was ‘under medical certificates’ for her illness. She attached a series of certificates from a Dr Lam which stated simply that she was suffering from an unspecified ‘medical illness’. It appears from the termination letter of 3 March 2022, and the respondent’s F3 document, that Ms Dekleva had been absent from work since 15 October 2021, and had been on unpaid leave since 7 December 2021. The respondent contends, and Ms Dekleva has not disputed, that she failed to respond to its efforts to contact her to discuss her continuing absence, including the question of a return to work date. The company concluded that Ms Dekleva was not able to meet the inherent requirements of her job and terminated her employment on 3 March 2022. Ms Dekleva was paid four weeks in lieu of notice.

1. Based on the information before the Commission, there was clearly a valid reason for dismissal. Ms Dekleva was not able to do her job. She submitted medical certificates that gave no detail of her condition. She did not provide any information about a possible return to work date. In my opinion there is nothing to suggest that the dismissal was harsh, unjust or unreasonable. The weak case presented by Ms Dekleva is an additional discretionary reason for the Commission to exercise its discretion under s 399A. Further, given Ms Dekleva’s intention not to file further materials, I consider that her application has no reasonable prospects of success. Had I not dismissed the application under s 399A, I would have done so under s 587(c). In this regard, I note that my correspondence to Ms Dekleva alerted her to my deliberations on whether the matter should be dismissed on this basis and directed her to file any submissions by 5.00pm on 10 May 2022, but none were received.

Conclusion

1. The company’s application under s 399A is granted. Ms Dekleva’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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