Ms Jodi Johansen v US Group Pty Ltd T/A CMR Personnel

[2016] FWC 4719

[2016] FWC 4719

FAIR WORK COMMISSION

DECISION

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

Ms Jodi Johansen
v
US Group Pty Ltd T/A CMR Personnel
(U2016/2967)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 14 JULY 2016

Application for relief from unfair dismissal—s.399A Application dismissed.

[1] On 21 June 2016, Ms Jodi Johansen made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Johansen’s employment had been terminated by US Group Pty Ltd, T/A CMR Personnel (CMR Personnel) on 30 May 2016.

[2] Ms Johansen was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon on Tuesday, 5 July 2016.

[3] Ms Johansen did not comply with this direction and failed to file materials by the required time outlined in the directions.

[4] At 1:51pm on 5 July 2016, Ms Johansen was contacted by the Commission informing her she was required to file submissions, any witness statements and other documentary material she wished to rely on by noon that day and that the Commission was yet to receive any such submission. Ms Johansen was at work and requested a call back after 4:00pm.

[5] At 3:11pm on Tuesday, 5 July 2016 the Commission received an application from CMR Personnel, pursuant to s.399A of the Act, that the matter be dismissed as Ms Johansen had failed to comply with the direction of the Commission.

[6] At 4:15pm the Commission contacted Ms Johansen and asked if she was aware she had to file materials on that day. Ms Johansen confirmed she wished to continue with her application and that she would file submissions that same day.

[7] Ms Johansen was advised of CMR Personnel’s section 399A application. Ms Johansen was directed to file submissions and other documentary material by close of business, on 5 July 2016. Ms Johansen was advised that if she failed to comply with this direction, her application may be dismissed.

[8] At 4:34pm on Tuesday, 5 July 2016 Ms Johansen filed her submission with the Commission. Ms Johansen’s submission was that she was unaware she was required to file any further submissions and did so immediately upon becoming aware.

Conclusion

[9] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non-compliance with directions of the Commission. 1

[10] The Explanatory Memorandum says that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[11] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited. 3

[12] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;

● directions play an important role in case management;

● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

● the circumstances of each case is central;

● a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant; and

● continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[13] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[14] I am not satisfied that Ms Johansen has unreasonably failed to comply with a direction of the Commission. Ms Johansen has not indicated an unwillingness to have her matter ready for hearing. She has now filed her material. In these circumstances, I will dismiss CMR Personnel’s section 399A application. An order giving effect to this decision will be issued today.

COMMISSIONER

 1 Section 399A of the Fair Work Act 2009 (Cth).

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

 3   PR956665.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR582787>