Matenneh Fefey v Ability Wa
[2023] FWC 1199
•26 MAY 2023
| [2023] FWC 1199 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Matenneh Fefey
v
Ability Wa
(U2023/1763)
| DEPUTY PRESIDENT BINET | PERTH, 26 MAY 2023 |
Application for an unfair dismissal remedy
On 4 March 2023, Mrs Matenneh Fefey (Mrs Fefey) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed on 6 February 2023 by Ability WA (Ability WA).
Emails to the address provided by Ms Fefy in her Form F2 – Unfair Dismissal Application were undeliverable. The relevant application fee was not paid at lodgement. The FWC sent Ms Fefey two reminders to pay before the relevant fee was paid.
In her lodgement email Ms Fefey acknowledged that the Application was “very late”. In the Form F2 she explained that the reasons for the delay was that her union membership had expired and her union had therefore declined to represent her. Correspondence attached to the Form F2 reveals that she was aware of the 21 day time limit to file unfair dismissal and that her union informed her that they would not represent her on 13 February 2023.
On 14 March 2023, the Chambers of Vice President Catanzariti contacted Ms Fefey explaining that in order for her to proceed with the Application she would need to seek an extension of time to file the Application and that such extensions were only available in exceptional circumstances. Ms Fefey was invited to provide further information as to how the reason for her delay was exceptional. Ms Fefey chose to provide no additional information about the reason for the delay.
The Application was allocated to my Chambers for determination on 23 March 2023.
On 24 March 2023, Ability WA filed a Form F3 - Employer response to unfair dismissal application.
Directions were issued to parties on 27 March 2023 which required Mrs Fefey to file her materials in relation to the merit of the Application by 4pm (AWST) Tuesday 4 April 2023 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.
On 27 March 2023, Ms Fefy sent an email to Chambers advising that she was on holiday. She did not request an extension of time to file her materials. On 28 March 2023 Chambers responded to Ms Fefy as follows:
“Directions were issued to the Parties today 27 March 2023.
The Commission is required to deal with matters such as Extension of Time Applications expeditiously under the Fair Work Act 2009 (Cth).
Chambers reminds the Parties that as stated in paragraph [15] of the Directions, compliance is mandatory and a failure do so may disadvantage the Party concerned.”
Ms Fefey did not respond to this email or otherwise indicate that she could not comply with the Directions.
Mrs Fefey failed to file any materials in accordance with the Directions by 4pm (AWST) 4 April 2023. On 5 April 2023, Ability WA made an application under section 399A of the FW Act for Mrs Fefey’s Application to be dismissed (Dismissal Application One) on the grounds that she failed to comply with the Directions.
On 6 April 2023, Ms Fefey sent an email to Chambers stating as follows:
“Please I'm currently away I will return on the 25/04/23
I will be unavailable to attend the meeting.”
On 11 April 2023, Chambers again wrote to Ms Fefey as follows:
“The Fair Work Commission is required to determine matter expeditiously.
If you are seeking an adjournment you need to provide written submissions and evidence, for example that your travel was arranged before the Directions were issued and that you are unable to prepare your materials and file them remotely.”
On 12 April 2023, Mrs Fefey provided Chambers with evidence that she was travelling overseas.
On 14 April 2023, the Deputy President granted Mrs Fefey an extension to file her materials and Amended Directions were issued by Chambers. The Amended Directions directed Mrs Fefey to file her materials by 4pm (AWST) 27 April 2023, after her return to Perth.
Mrs Fefey failed to file her materials by 4pm (AWST) 27 April 2023 and Ability WA made a second application under section 399A of the FW Act for Mrs Fefey’s Application to be dismissed (Dismissal Application Two) on the grounds that she failed to comply with the Amended Directions.
On 3 May 2023, Mrs Fefey provided Chambers with medical evidence that she had been unwell and was unable to comply with the Amended Directions.
On 8 May 2023, the Deputy President granted Mrs Fefey a further extension and further Amended Directions were issued by Chambers. The Amended Directions pursuant to paragraph [7] directed Mrs Fefey to file her materials by 4pm (AWST) Tuesday 16 May 2023.
On 9 May 2023, Chambers provided assistance over the phone to Ms Fefey to assist her prepare her materials.
On 10 May 2023 Chambers sent Ms Fefey templates and other resources to assist her prepare her materials pursuant to paragraph [7] of the Amended Directions. Chambers at this time reminded Mrs Fefey that under paragraph [16] of the Amended Directions, compliance with the Directions was mandatory.
On 11 May 2023, Mrs Fefey wrote to Chambers and stated:
“..I kindly request that no further action be taken from my end unless specifically requested by the FWC. I trust that the information and evidence I have provided are sufficient for the consideration of my case.”
On 11 May 2023, Chambers replied to Mrs Fefey’s email and stated that:
“You are required to file all of the documents outlined in paragraph [7] of the Directions by 4pm (AWST) 16 May 2023. Chambers confirms these documents are separate from the Form F2 – Application for an Unfair Dismissal Remedy and associated documentation that you have filed prior to Directions being issued.
…
If you do not file your materials outlined in paragraph [7] of the Amended Directions by the due date, your Application may be dismissed under s 399A of the FW Act.”
No materials were filed in accordance with the Amended Directions issued on 8 May 2023 by Mrs Fefey, or since.
Section 399A of the FW Act provides:
“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.
Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(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.”
Mrs Fefey failed to file the materials she was directed to file by the dates specified in the Directions or by the date of this Decision. I am satisfied that Mrs Fefey has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Ability WA and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order[1] will be issued with this Decision.
DEPUTY PRESIDENT
[1] Print PR762089.
Printed by authority of the Commonwealth Government Printer
<PR762088>
0
0
0