Masami Wright v Langports (Gold Coast) Pty Ltd T/A Langports English Language College, Gold Coast

[2016] FWC 513

[2016] FWC 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Masami Wright
v
Langports (Gold Coast) Pty Ltd T/A Langports English Language College, Gold Coast
(U2015/12231)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 10 October 2015, Ms Masami Wright made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Wright’s dismissal from her employment by Langports (Gold Coast) Pty Ltd took effect on 18 September 2015.

[2] The matter was the subject of conciliation, however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Wright was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 14 December 2015.

[4] On 15 December 2015, as Ms Wright had not filed any material, the Fair Work Commission attempted to contact her and her representative, Mr Adam Wright. Voicemails were left for Ms Wright and Mr Wright, seeking a return call.

[5] On 16 December 2015, a further voicemail was left for Ms Wright, advising that the matter would be listed for a non compliance hearing before Commissioner Roe on 18 December 2015.

[6] Ms Wright did not attend the non compliance hearing on 18 December 2015. Commissioner Roe determined to extend the period for Ms Wright to file all her material to 11 January 2016 and that if Ms Wright did not file her material by then, the oral application made by Langports, pursuant to section 399A of the Act that the matter be dismissed as Ms Wright had failed to comply with a direction of the Commission, would be accepted and Ms Wright would then have seven days to respond to a letter from the Commission.

[7] After the non compliance hearing, amended directions were issued, reflecting the extension of time to file material given by Commissioner Roe.

[8] Ms Wright did not file any material with the Commission.

[9] On 11 January 2016, Ms Wright was sent correspondence informing her of Langports’s section 399A application. Ms Wright was directed to file submissions and other documentary material in respect of Langports’ application by close of business, on 18 January 2016. Ms Wright was advised that if she failed to comply with this direction, her application would be dismissed.

[10] On 18 January 2016, albeit not before close of business, Mr Wright wrote to the Commission on behalf of Ms Wright, advising that Ms Wright intended to continue with her unfair dismissal application. Mr Wright outlined the difficult circumstances he faced in early December 2015, concerning his employment which was terminated by Langports in February 2015. He said he became aware of some “very concerning, untruthful, defamatory and hurtful discussions re the reasons for [his] employment ending with Langports...” Mr Wright said that December 2015 was therefore an extremely difficult time for his family and they were unsure whether they were going to pursue Ms Wright’s application for unfair dismissal remedy. Mr Wright said that they wanted to take time out and remove themselves from communication with Langports, whilst spending considerable time attempting to correct the untruths surrounding his termination of employment.

[11] Mr Wright said that after careful consideration and evaluation, they felt that continuing Ms Wright’s matter in the Commission was the right decision.

[12] On 20 January 2016, I caused correspondence to be sent to Langports, directing that it file its submissions in reply to Mr Wright’s email by 4.00pm, 1 February 2016.

[13] On 21 January 2016, Langports filed its submissions in reply. It submitted that Mr Wright’s email of 18 January 2016 does not suggest that the allegations he raises relate in any way to Ms Wright’s application for unfair dismissal remedy. Langports submitted that the explanations provided do not support a conclusion that Ms Wright acted reasonably and that according to Mr Wright’s email, Ms Wright and Mr Wright made a conscious decision to ignore the Commission’s directions between early December 2015 and 18 January 2016.

[14] Langports submitted that the Commission can be satisfied Ms Wright acted unreasonably in failing to comply with the directions issued by the Commission on 23 November 2015 and 18 December 2015 and that its section 399A application should be granted.

Conclusion

[15] Section 399A of the 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.

[16] I am satisfied that Ms Wright has unreasonably failed to comply with directions of the Commission. The submissions filed by Mr Wright do not provide adequate reasons as to why the Commission should not dismiss Ms Wright’s application. The submissions largely relate to how Mr Wright feels about his own employment which was terminated by Langports. Though Mr Wright said they wanted to take time out and remove themselves from communication with Langports, that does not excuse Ms Wright from not filing her material with the Commission.

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Wright did not communicate with the Commission prior to the compliance date. She did not seek an extension of time to lodge her material. Nor did she participate in the non-compliance hearing or explain her non-participation. In these circumstances, I will exercise my discretion and dismiss Ms Wright’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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