Mia Kulik v Court Services Victoria

[2024] FWC 2442

[2024] FWC 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mia Kulik
v

Court Services Victoria

(U2024/7263)

DEPUTY PRESIDENT MASSON MELBOURNE, 9 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.

1. On 24 June 2024, Ms Mia Kulik (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Court Services Victoria (the Respondent) was unfair.

1. The matter was listed for conciliation conference before a staff member of the Commission on 26 July 2024 but did not proceed as despite attempts to contact her, the Applicant failed to attend the telephone conciliation conference.

1. The matter was allocated to my Chambers on 1 August 2024 following which, directions were issued to the parties that same day setting down a timetable for the filing of material by both parties. The directions issued to the parties on 1 August 2024 relevantly included the following; 

“…………… 

SUBMISSIONS AND WITNESS STATEMENTS

[3] The submissions must include all relevant facts, dates and incidents to support all claims made.

[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.

[5] Please note that witness statements are designed to take the place of evidence-in-chief.

………………………. 

NON-COMPLIANCE WITH THESE DIRECTIONS

[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.

……………….” 

1. The Applicant failed to file material in support of her application on or by close of business 22 August 2024 as required by the directions. On 23 August 2024 correspondence was sent to the parties by my Chambers noting the Applicant’s materials were due by close of business 22 August 2024 and given an earlier request from the Respondent seeking an additional conciliation conference, advice was sought as to whether the parties still wished for a further conciliation conference to be held and whether an adjustment to the directions was sought. No response to the 23 August 2024 email was received from either party.

1. On 29 August 2024 a further email was sent by my Chambers advising the Applicant that unless she provided a response to the 23 August 2024 email by close of business on 30 August 2024, I would consider that she had failed to file her materials per the directions and a non-compliance hearing would be listed.

1. The matter was then listed for an on-line non-compliance hearing at 9.00am on 4 September 2024. Prior to the commencement of the hearing, my Associate attempted to contact the Applicant on the phone number listed on the Form F2. A voice message was left by my Associate advising the Applicant of the Non-compliance hearing and requesting a call back or alternatively advising the Applicant to join the Teams meeting. The Applicant did not join the Teams meeting or return the call made by my Associate.

1. The non-compliance hearing proceeded and was attended by Mr B O’Dwyer, Principal Workplace Relations Specialist, People & Culture and Ms P Kelly, People Partner, for the Respondent. Mr O’Dwyer made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.

1. Correspondence was sent to the Applicant by my Chambers on 4 September 2024 following the non-compliance hearing, advising her that the Respondent had made an application pursuant to s 399A(2) of the Act that her application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. The Applicant was invited to provide submissions by close of business on Friday, 6 September 2024 as to why her application should not be dismissed. The Applicant was also advised that should she seek to be heard in relation to the s 399A application she should advise my Chambers. Otherwise, the matter would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to her on 4 September 2024.

Consideration 

1. Turning now to whether the application should be dismissed, s 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.” 

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss her application for an unfair dismissal remedy by the close of business on Friday, 6 September 2024, I will determine the application on the papers.

1. The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. She has done so by failing to attend the staff conciliation conference scheduled for 26 July 2024, failing to attend the non-compliance hearing listed for 4 September 2024 and failing to file her materials by 22 August 2024 as required by the above-referred directions. No extension of time has been sought by the Applicant in relation to her non-compliance with the directions. Nor has she provided an explanation for her non-compliance despite being afforded an opportunity to do so.

1. In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

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