Miss Cassandra Frerichs v BN & VL Heck T/A Video Ezy Mackay

[2013] FWC 9776

[2013] FWC 9776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Cassandra Frerichs
v
BN & VL Heck T/A Video Ezy Mackay
(U2013/14349)

COMMISSIONER SPENCER BRISBANE, 18 DECEMBER 2013

Application for relief from unfair dismissal - failure to comply with directions in a matter - s.399A application - unreasonable failure.

[1] This decision relates to an application, filed on 9 October 2013, by Ms Cassandra Frerichs (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of her employment from BN & VL Heck t/a Video Ezy Mackay (the Respondent) was harsh, unjust or unreasonable (the application).

[2] The Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy in response to the application, on 23 October 2013. The Respondent sought to raise a jurisdictional objection to the application, on the basis that the application was filed outside the 21 day time limit, pursuant to s.394(2)(a), and that no further period had been granted by the Commission, pursuant to s.394(2)(b) of the Act.

[3] The Respondent sought that the jurisdictional objection be dealt with prior to conciliation in the matter.

[4] The matter came before the Commission, as presently constituted, for arbitration, in relation to the jurisdictional objection only.

Background

[5] The Applicant was employed by the Respondent as a Retail Assistant, and had been so since 2011.

[6] The Respondent submitted, by way of its Form F3 Employer’s Response, that the Respondent had dismissed the Applicant on the basis of the Applicant’s conduct, which the Respondent considered amounted to serious misconduct..

[7] The Applicant submitted, in her originating application, that she was dismissed from her employment on 16 September 2013. There is no dispute between the parties that this is the date the dismissal of the Applicant took effect. The application was filed on 9 October 2013, 23 days after the date the dismissal took effect.

[8] The matter was listed for Mention/Conciliation before the Commission on 15 November 2013, by telephone. The Respondent requested, and was granted, an adjournment of this listing. The matter was relisted for 22 November 2013, at 10am, by telephone.

[9] At 5:32pm on 21 November 2013, the Applicant corresponded with the Commission as follows:

“Dear Sir

I am unable to attend phone conference at 10 am on 22/11/13,

as I am now working for JB HI FI Mackay  as Media advisor of software / games  ,and due to release of new Xbox cannot get time off ,

also cannot have 29/11/13 as this day is release of Play station PS4,

I am asking for an adjournment to a alternative date,

Hope u find my this reasonable, as I have just recently started with JB HI FI

Thank you,” (errors in original)

[10] Despite the failure of the Applicant to apply for the adjournment in a timely manner, the Commission vacated the listing. Because of the late notice of the adjournment request, on the part of the Applicant, the Respondent’s representative contacted the Commission early in the morning of 22 November 2013. The Respondent’s representative advised the Associate to the Commission that the Respondent did not intend to enter into conciliation in the matter and sought that the Commission issue Directions in relation to the jurisdictional objection.

[11] Given the Respondent’s position regarding conciliation of the matter the Commission issued Directions to the parties in relation to the jurisdictional objection only.

[12] These Directions were issued on 22 November 2013, by email, to the parties. The Directions were issued to the Applicant’s email address used by the Applicant on 21 November to request an adjournment.

The Directions

[13] The Directions issued to the Applicant directed the Applicant to:

“The Applicant is required to file the following material with the Commission, and serve a copy on the Respondent, by no later than 4.00pm on Friday, 6 December 2013:

Submissions and witness statements/affidavits in relation to the extension of time jurisdictional issue, addressing the matters listed in s.394(3) of the Act.”

[14] The Directions provided the parties with the full text of s.394 of the Act, including s.394(3).

[15] The parties were directed in relation to submissions and affidavits as follows:

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

The witness statements/affidavits are required to outline the evidence of each witness that the party intends to call at the hearing and are to be provided in the form of a signed statement. All documents referred to in the witness statements/affidavits are required to be attached as an annexure to that witness statement/affidavit, and numbered accordingly.

Please note that witness statements/affidavits are designed to take the place of evidence-in-chief.” (emphasis in original)

[16] The parties were also advised that late submissions would not be accepted, as follows:

“The Commission will not accept material that is filed after the expiry of a timeframe unless an extension has been sought from and granted by the Commission prior to the expiry of that timeframe.

Requests for an extension of time must be made to the Commission in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.”

[17] The Directions also extracted s.399A of the Act, in full.

[18] On 26 November 2013, the Respondent’s father corresponded with the Commission, from the email address used by the Applicant to request an adjournment on 21 November 2013, and to which the Directions were issued on 22 November 2013, and stated as follows:

“Hi

Does this mean that the matter has been dropped or is to b (sic) relisted at a later date

Thankyou”

[19] The Commission responded, also on 26 November 2013, as follows:

“Dear Mr Frerichs,

I refer you to the correspondence of 22 November 2013 attaching Directions issued by the Commission in relation to the extension of time only.

I attach the correspondence again for convenience.

The Commission has directed the parties to file material in accordance with the Directions in relation to whether the Commission should allow a further period to the Applicant to file the Form F2 application.

I note that the Applicant has been directed to file submissions and material, in relation to the extension of time only, by Friday, 6 December 2013.”

[20] As stated, in the Commission’s reply on 26 November 2013, the Directions of 22 November 2013, were attached to the correspondence.

[21] On Monday, 9 December 2013, the Respondent corresponded with the Commission, and the Applicant, as follows:

“We refer to our telephone attendance on the Commission of 9 December 2013.

We note that the Applicant has failed to comply with the Directions of Commissioner Spencer issued 22 November 2013; particularly, that the Applicant file and serve submissions relating to the extension of time only on or before 6 December 2013.

In light of this failure, and the Applicant’s previous failure to comply with directions relating to the adjournment of Commission listings, we request the Commissioner exercise her discretion to dismiss the application with costs under sections 399A(1)(a) and (b) of the Fair Work Act 2009 (“the Act”).

Would you please advise whether the Commissioner will exercise her discretion pursuant to section 399A of the Act.”

[22] This email was sent to the Applicant via two emails. One being the email which appeared on the originating application and another which had been used in the correspondence recounted above, to correspond with the Commission. The emails to the Commission show that emails sent to the email address provided by the Applicant on her originating application were forwarded to the second email address; correspondence was then sent to the Commission from the second email address, which is the address to which the Directions were issued on 22 November 2013. Having viewed the email addresses one appears to be the email address of the Applicant personally, the other that of her father.

[23] On Tuesday, 10 December 2013, the Commission caused the following correspondence to be sent to the Applicant, via both emails:

“Dear Ms Frerichs,

I refer to the correspondence below and the Directions issued by the Commission, dated 22 November 2013. I also note the correspondence of the Commission, in reply to Mr Frerichs of 26 November 2013, further attaching the Directions of 22 November 2013.

By way of Direction [5] the Applicant was to file, and serve, submissions and witness statements in relation to the extension of time. To date, no material has been filed in the Commission in compliance with this Directions.

The Respondent has applied to the Commission, for the Commission to dismiss the application pursuant to s.399A(1)(a) and (b) of the Fair Work Act 2009.

I refer the parties to s.399A of the Act 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.

Note 1: For another 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.

In considering whether to dismiss the application pursuant to s.399A(1) or (b), the Commissioner provides an opportunity to the Applicant to provide any reasons for the failure to comply with the Directions of 22 November 2013, or to seek an extension of time in conformance with Direction [14]. Any such reasons must be accompanied by relevant evidence of such. The Applicant must file, and serve, any reasons for the failure to comply by no later than close of business on Tuesday, 17 December 2013. If no response is received by this time the Commission will consider that the Applicant does not wish to be heard in relation to the application to dismiss and may decide the application to dismiss on the basis of the material presently before the Commission.”

[24] To date, no further correspondence has been received from the Applicant; no reasons for the failure to comply have been provided.

Legislation

[25] The Respondent has applied for the application to be dismissed pursuant to s.399A of the Act, which 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 another 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.

[26] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Consideration

[27] The Respondent has applied for the Commission to dismiss the Applicant’s application pursuant to ss.399A(1)(a) or (b) of the Act.

[28] In so far as the Respondent relies upon s.399A(1)(a) of the Act, the application is dismissed.

[29] The Respondent’s application, dated 9 December 2013, is understood to rely upon this power on the basis of the Applicant’s failure to “to comply with directions relating to the adjournment of Commission listings”.

[30] This ground does not rely upon an unreasonable failure of the Applicant to attend a conference or Hearing, conducted or held by the Commission. In so far as the Respondent’s application does rely upon this ground it is rejected. This is so because s.399A(1)(a) of the Act only empowers the Commission to dismiss an application where the Commission is “satisfied that the Applicant has unreasonably... failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application”. Despite the Applicant’s late request for an adjournment, and no apparent reason for the lateness of such request, the Commission nevertheless vacated the Conference. The failure to appear was therefore reasonable.

[31] The Respondent also relies upon s.399A(1)(b) of the Act.

[32] The Applicant was directed to file material in accordance with the Directions of 22 November 2013. This Direction was later confirmed with the Applicant and the Commission specifically noted the date for the Applicant’s compliance to file material. The Applicant has failed to comply with a direction of the Commission relating to the application.

[33] The question for determination is then: was the Applicant’s failure to comply with the direction of the Commission relating to the application, unreasonable?

[34] The Applicant was emailed the Directions on 22 November 2013. This email was sent to an email address, from which the Commission had received correspondence from the Applicant less than 24 hours prior. This was also an email address used to correspond with the Commission on 26 November 2013.

[35] The Directions were again provided to the Applicant, on that same email, on 26 November 2013, and the Commission drew the Applicant’s attention to the date for compliance with those Directions.

[36] After the Applicant had failed to comply with the Direction and following receipt of the Respondent’s application pursuant to s.399A, the Commission provided the Applicant with an opportunity to provide reasons, and evidence, for such failure. This opportunity was provided by email, again to the email address used in this matter previously by the Applicant, and copied to the Applicant’s second email as well.

[37] The Applicant has not provided any reasons for her failure to comply with the Directions of 22 November 2013.

Conclusion

[38] The Applicant has failed to comply with Directions of the Commission relating to this application.

[39] The Applicant has provided no reasons for such continued failure to respond, and further has failed to establish, by any evidence, any reasons for non-compliance, despite being advised to do so by the Commission.

[40] The Commission is satisfied on the basis of the material presently before the Commission, on the balance of probabilities, that the Applicant was aware of the Directions and, more specifically, the date for compliance with those Directions. The Commission is further satisfied, on the basis of the correspondence presently before the Commission, that the Applicant was provided with a reasonable opportunity to provide reasons, and evidence, for such failure, to comply

[41] The Applicant’s failure to comply with the Directions is unreasonable, taking into account the opportunities provided to the Applicant. In addition, the Applicant’s lack of reasons for such non-compliance supports the exercise of the discretion to dismiss the application.

[42] The application, filed pursuant to s.394 of the Act, is dismissed pursuant to s.399A(1)(b) of the Act.

[43] I Order accordingly.

COMMISSIONER

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