Mrs Violeta Sekulovski v Toll Energy & Marine Logistics

[2017] FWC 2826

[2017] FWC 2826

FAIR WORK COMMISSION

DECISION

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

Mrs Violeta Sekulovski
v
Toll Energy & Marine Logistics
(U2016/14970)

DEPUTY PRESIDENT BINET PERTH, 24 MAY 2017

Application for an unfair dismissal remedy - application by respondent pursuant to s.399A - application dismissed..

[1] On 16 December 2016, Ms Violeta Sekulovski (Ms Sekulovski) 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 by Toll Transport Pty Ltd T/A Toll Energy & Marine Logistics (Toll).

[2] On 22 December 2016, Toll lodged a Form F3 Employer Response to the Application which included a jurisdictional objection to the Application on the grounds that the Applicant’s dismissal was a case of genuine redundancy in accordance with section 389 of the FW Act.

[3] On 8 February 2017, the Application went to conciliation before a FWC conciliator but the issues between the parties were not resolved.

[4] On 28 February 2017, the parties were advised that Application had been listed for a conciliation conference before me on 15 March 2017. Toll advised my Chambers, on the date the Notice of Listing was sent, that the employee with carriage of the matter was unavailable to attend at the listed time as they had another matter listed before Deputy President Bartel at the same time. A request by Toll for the matter to be rescheduled to a different time or date was granted and, on 7 March 2017, the conference date was amended to 23 March 2017.

[5] On 23 March 2017, Ms Sekulovski advised that she could not attend the conference listed for later the same day because she had become aware the day before that she would be delayed leaving her new workplace. The content of her email read as follows:

“I apologise for the late notice, but I will not be able to make the hearing listed for today. I was scheduled to fly offsite yesterday afternoon from Christmas Creek where I am currently working, to be in Perth for the hearing today, however, due to issues with the chartered plane, I am unable to depart until late this afternoon.

I would appreciate it if you could please advise if the date could be rescheduled to another time.”

[6] On 23 March 2017, parties were directed to advise Chambers on or before 24 March 2017 of their unavailable dates for a relisted conference in March and April 2017. Toll provided their unavailable dates as directed but Ms Sekulovski failed to do so. On 27 March 2017, my Chambers contacted Ms Sekulovski and again requested her unavailable dates. On 29 March 2017, Ms Sekulovski advised that she was unavailable in March, but available the weeks beginning 24 April 2017 and 1 May 2017.

[7] On 3 April 2017, the matter was relisted to 3.00pm on Thursday, 27 April 2017.

[8] On 4 April 2017, Ms Sekulovski emailed Chambers to advise that she was ‘… available any Monday or Friday in May.  I am not available in April’. Ms Sekulovski was advised that, as per her email of 29 March 2017, the matter had been listed for 27 April 2017.

[9] Nothing further was heard from Ms Sekulovski until 26 April 2017, the day before the rescheduled conference. On 26 April 2017 Ms Sekulovski emailed Chambers advising that she could not attend the rescheduled conference due to transport issues.

[10] Given that:

(i) the Applicant had previously cancelled another conference at short notice despite having more than two weeks’ notice of the listing date;
(ii) the rescheduled conference had been listed on a date requested by the Applicant; and
(iii) the Applicant had more than three weeks’ notice of the date of the rescheduled conference;

the Applicant was directed to participate in the rescheduled conference via telephone. The Applicant advised Chambers that she was unwilling to do so, stating ‘I’m sorry Julia I do not want to do this over the phone’.

[11] On 27 April 2017, my Chambers emailed the parties to advise that the matter had been vacated due to the unavailability of the Applicant. Toll were requested to advise whether they consented to the matter being listed for a conference on 6 July 2017, or whether they wished to make an application for the matter to be dismissed pursuant to section 399A of the FW Act.

[12] On 28 April 2017, Toll filed with Chambers and served on Ms Sekulovski a Form F1 application pursuant to section 399A of the FW Act for the Application to be dismissed (Dismissal Application) on the grounds that Ms Sekulovski unreasonably failed to attend the conferences scheduled on 23 March 2017 and 27 April 2017.

[13] Section 399A of the FW 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.

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.”

[14] On 1 May 2017, Ms Sekulovski was invited by my Chambers to make written submissions in relation to the Dismissal Application by 5 May 2017. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the matter.

[15] On 5 May 2017, Ms Sekulovski emailed my Chambers requesting that her Application not be dismissed, because she was keen to pursue her claim but had been prevented from doing so by her new employer. Ms Sekulovski was directed to file evidence of her inability to comply with the previous directions of the Fair Work Commission.

[16] Ms Sekulovski sought clarification about the types of evidence required. In an email sent from Chambers, Ms Sekulovski was invited to submit any evidence supporting the assertion that she did not unreasonably fail to attend the scheduled conferences, such as:

“ The request to your employer for time off to attend conferences in person or via telephone (as per your email on 26 April 2017).

• Submissions and evidence as to why you were unable to contact the Fair Work Commission earlier to notify us of your unavailability on 27 April 2017.



• Evidence that issues with the chartered plane prevented you from attending the conference on 23 March 2017”

[17] No further correspondence was received from Ms Sekulovski, and no request was received from either party to be heard orally.

[18] I am satisfied that Ms Sekulovski has unreasonably failed to attend conferences conducted by the FWC and has failed to comply with directions issued by the FWC relating to the Application.

[19] On the application of Toll and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect (PR593143) will be issued with this decision.

DEPUTY PRESIDENT

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<Price code A, PR593142>