Ms Lawraye Anderson v Bullinah Aboriginal Health Service Aboriginal Corporation T/A Bullinah Aboriginal Health Service
[2023] FWC 2072
•18 AUGUST 2023
| [2023] FWC 2072 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Lawraye Anderson
v
Bullinah Aboriginal Health Service Aboriginal Corporation T/A Bullinah Aboriginal Health Service
(U2023/3846)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 18 AUGUST 2023 |
Application for an unfair dismissal remedy
On 5 May 2023, Ms. Lawraye Anderson (the Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act) (original application). According to the original application, the Applicant was employed by Bullinah Aboriginal Health Service Aboriginal Corporation T/A Bullinah Aboriginal Health Service (the Respondent) from 31 January 2013 until her employment was terminated by the Respondent on 14 April 2023.
On 28 July 2023, the Respondent filed an application to have the original application dismissed pursuant to s.399A(1)(b) of the FW Act (the dismissal application). The dismissal application followed on from previous listings and directions which had been made for the programming of the matter.
The hearing of the original application is currently listed for 22 and 23 August 2023.
On 31 July 2023 I issued Directions to the parties in the following terms:
1. The Applicant is to file the following material in the Fair Work Commission, and serve a copy on the Respondent, by no later than 10:00am on Friday, 4 August 2023:
a. A written submission in support of the application and dealing with the matters referred to in s.387, s.391 and s.392 of the Fair Work Act 2009; and
b. Witness Statements for each of the witnesses the Applicant intends to call at the hearing in support of the application; and
c. Any other documents the Applicant intends to rely on as evidence at the hearing.
2. The Applicant is to file and serve any material in response to the Respondent’s application to dismiss the originating application by no later than 10:00am on Friday, 4 August 2023.
3. The matter is listed for further directions at 11am AEST on Monday 7 August 2023.
There has been no response from the Applicant to the directions referred to above. I therefore propose to deal with the dismissal application on the basis of the material before me, including the procedural history of the matter which is set out below.
Relevant Facts and Background
The application was allocated to my Chambers on 3 July 2023 following previous unsuccessful attempts to resolve the matter at a Staff Conciliation.
On 4 July 2023, my Chambers issued a Notice of Listing for a Directions Hearing and Member Assisted Conciliation to take place on Tuesday, 11 July 2023. Draft Directions for the programming of the matter were sent with the Notice. The Applicant’s former Representative (whose email address was still on the Commission’s file as the Applicant’s preferred contact) received this Notice of Listing and promptly forwarded it to the Applicant. The Representative confirmed with the Applicant that they had had no contact from her since 2 June 2023 and that they were no longer acting for her. The correspondence urged the Applicant to seek alternative representation. The Commission was copied into that correspondence and the Applicant’s contact details were updated such that future communication from the Commission was to be with the Applicant directly.
On 5 July 2023, the following email was received by my Chambers from the Respondent’s Representative and copied to the Applicant’s previous Representative’s email address:
Dear Associate to Deputy President Roberts
U2023/3846 – Anderson v Bullinah Aboriginal Health Service Aboriginal Corporation T/A Bullinah Aboriginal Health Service
We refer to the above matter and the notice of listing issued on 4 July 2023.
We respectfully request the directions hearing be rescheduled for another suitable time as it is currently conflicting with a commitment that Payden Samuelsson, our instructing officer (CEO) has to attend an in-person board meeting that cannot be rescheduled. The Respondent has already incurred the expense of travel, venue and accommodation costs for Directors from 8 different regions across the state for this meeting.
For the Commissions consideration and convenience, our client has confirmed their current availability to reschedule the directions hearing on one of the following times and dates:
13 July 2023 10am – 12pm
21 July 2023 (any time)
24 July 2023 9am to 12pm
28 July 2023 10am to 12pmOur client is amenable to other times and dates if the above is not suitable.
The Applicant is copied into this email.
Kind regards
On 6 July 2023, a further email was sent from my Chambers. Unfortunately, due to an administrative error, this was sent to the email of the former Representative of Applicant again and not the Applicant. The email relevantly provided:
Dear Parties,
Chambers refers to the above matter and to the Respondent’s Representative’s email below.
The Applicant’s views as to the adjournment request filed by the Respondent is requested by no later than 10am AEST tomorrow, Thursday 6 July 2023. This is required by way of reply email copying the Respondent. In the event that the Applicant does not respond by this time, the matter will be re-listed to 10am AEST on Wednesday, 12 July 2023. The Respondent is also asked to confirm their availability for this day/time by by no later than 10am AEST tomorrow, Thursday 6 July 2023.
Yours faithfully,
On 7 July 2023, the Applicant’s previous Representative sent the following email to Chambers, copying the Respondent:
Dear Colleagues,
As previously advised we do not now act for the Applicant.
Regards
On the same date the Applicant’s previous Representative sent a second email to Chambers, copying the Respondent and the Applicant’s correct email address:
Dear Ms Anderson
Please see email below
As previously advise we do not act for you.
You should urgently contact the commission direct as shown below.
Regards
On 7 July 2023, my Chambers issued an Amended Notice of Listing for a Directions Hearing and Member Assisted Conciliation, to take place on Wednesday, 12 July 2023. Draft Directions for the programming of the matter were sent with the Amended Notice. This Amended Notice of Listing was issued to the Applicant’s email address.
The Applicant failed to attend the Directions Hearing on 12 July 2023. The matter proceeded in the Applicant’s absence. Directions were issued in final form and a date for the hearing of this matter was set for a two-day hearing on 22 and 23 August 2023. The Directions included the following:
1. The Applicant is required to file the following material in the Fair Work Commission, and serve a copy on the Respondent, by no later than 4:00pm on Tuesday, 25 July 2023:
a. A written submission in support of the application and dealing with the matters referred to in s.387, s.391 and s.392 of the Fair Work Act 2009; and
b. Witness Statements for each of the witnesses the Applicant intends to call at the hearing in support of the application; and
c. Any other documents the Applicant intends to rely on as evidence at the hearing.
Shortly after the conclusion of the Directions Hearing, my Chambers issued the Notice of Listing with the Directions for the hearing of the matter on 22 and 23 August 2023. The following email, along with ‘read receipt’ requests, were sent with the Notice of Listing:
Dear Parties,
Chambers refers to the above matter and to the Directions Hearing conducted this morning in the Applicant’s absence.
Please find attached a copy of the Notice of Listing for the Hearing in this matter with directions for the filing of submissions dispatched to parties earlier.
Parties are reminded that they are required to strictly comply with these directions and that a failure to do so may result in the dismissal of the application under s.399A or 587 of the Act. Any application for variation to the directions should be made to Chambers and will only be considered where there is a proper basis for the application.
Parties are asked to confirm receipt of the attached by no later than 4pm AEST today, 12 July 2023.
Yours faithfully,
Shortly thereafter, my Chambers received confirmation of read receipts of the email referred to above from both the Applicant and the Respondent.
On 20 July 2023, the following email from the Applicant was received by my Chambers and copied to the Respondent’s Representative:
To whom it may concern, I lawraye Anderson am asking for an extension for more time for the hearing, dates Tuesday 22nd August 2023 & Wednesday 23rd August 2023 due to not having a lawyer because he is no longer working with the firm. I am seeking legal aid funding to help assist me for an employment lawyer to help me in this case. I also have a medical condition that I am dealing with, (Doctor certificate will be attached to this email).
A doctor’s certificate was attached to the email. The certificate was dated 20 July 2023 and provided that the Applicant was receiving medical treatment and was ‘unfit for work’ for the period 20 July to 20 October 2023 inclusive.
On 21 July 2023, my Chambers sent the following email to Parties:
Dear Parties,
Chambers refers to the above matter and to the Applicant’s email below.
Noting the Applicant’s comments in relation to legal representation and hearing dates and also that the Applicant did not attend the Directions Hearing and Potential Member Assisted Conciliation in this matter listed on 12 July 2023, the Deputy President seeks the Parties’ confirmation and availability to attend a Conciliation on Tuesday, 25 July 2023 at 11am AEST by Video using Microsoft Teams. Parties are asked to confirm their availability by no later than 4pm AEST today, 22 July 2023.
If at the conclusion of the Member Assisted Conciliation, the matter is not resolved, the Deputy President will consider the application for amended Directions and a new hearing date suitable to both parties.
Yours faithfully,
On 21 July 2023, the following email from the Respondent’s Representative was received by my Chambers and copied to the Applicant:
Dear Associate to Deputy President Roberts
We confirm the Respondent’s availability to attend a Conciliation on Tuesday, 25 July 2023 at 11am AEST by Video using Microsoft Teams.
On 24 July 2023, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to the above matter and to previous correspondence.
Chambers notes that the Applicant failed to confirm availability to attend a Conciliation on Tuesday, 25 July 2023 at 11am AEST as requested below however noting the circumstances and the Applicant’s request in the initial correspondence, the matter will be listed at this time and the Applicant is expected to attend and asked to confirm their availability by 4pm today 24 July 2023.
A notice of listing to this effect will be issued shortly.
Yours faithfully,
The above email was followed by a Notice of Listing for a Directions Hearing and Member Assisted Conciliation, on Tuesday, 25 July 2023 which was issued to both parties.
On 25 July 2023, prior to the matter commencing, my Associate called the Applicant on the mobile number provided by the Applicant’s previous Representative to confirm the Applicant’s appearance. My Associate left a voicemail asking the Applicant to confirm their appearance. Shortly thereafter, the Applicant called Chambers and spoke to my Associate advising they were unwell and unable to attend the listing later that morning and advised that a rescheduled listing on 26 July 2023 would be suitable.
On 25 July 2023, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to the above matter and to previous correspondence.
Chambers confirms that we have had contact with the Applicant this morning who advised that she is unwell and not in a position to attend the listing today. The Applicant has confirmed her availability for a rescheduled listing at 11am AEST tomorrow, 26 July 2023. As such please note that the listing this morning is now vacated.
A notice of listing to this effect will be issued shortly.
Yours faithfully,
The above email was followed by an Amended Notice of Listing for a Directions Hearing and Member Assisted Conciliation, on Wednesday, 26 July 2023 which was issued to both parties.
On 25 July 2023, the following email from the Respondent’s Representative was received by my Chambers and copied to the Applicant:
Dear Associate to Deputy President Roberts
U2023/3846 – Anderson v Bullinah Aboriginal Health Service Aboriginal Corporation T/A Bullinah Aboriginal Health Service
We refer to the above matter and the notice of listing issued today.
We respectfully request the directions hearing be rescheduled for another suitable time as it is currently conflicting with Payden Samuelsson, our instructing officer (CEO) leave on 26 and 27 July 2023 for carers responsibilities.
For the Commissions consideration and convenience, our client has confirmed their current availability to reschedule the directions hearing on one of the following times and dates:
28 July 2023 - any time except for 2pm to 3:30pm
31 July 2023 - morning up until 1pm
3 August 2023
7 August 2023 – any time after 11amOur client is amenable to other times and dates if the above is not suitable.
The Applicant is copied into this email.
Kind regards
On 25 July 2023, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to the above matter and to the Respondent’s email below.
The listing at 11am AEST tomorrow, 26 July 2023 has now been vacated. Chambers proposes to re-list the matter at 9am AEST on Friday, 28 July 2023. The Applicant is asked to confirm their availability by no later than 4pm AEST today, 25 July 2023.
Yours faithfully,
On 26 July 2023, having not received a response from the Applicant to the email above, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to the above matter and to the email below.
Chambers notes that the Applicant has failed to reply to correspondence seeking confirmation of attendance at a proposed further directions hearing. Accordingly, the proposed listing of the matter at 9am AEST on Friday, 28 July 2023 will not proceed.
The current directions remain in force noting that the Applicant did not request for an extension of time to file submissions but rather only an extension to the hearing dates. It is noted that as per the attached Notice of Listing and Directions issued by the Commission, the Applicant was due to provide their material by 4pm AEST on Tuesday 25 July 2023. Chambers is not in receipt of the material or a request for an extension.
Deputy President Roberts directs that the outstanding material is to be provided as soon as possible and by no later than 4pm AEST today, 26 July 2023 along with the reason for the failure to comply with the original direction.
If the material cannot be provided, the Applicant should make a formal extension request in writing to Chambers outlining the reason for the delay and providing appropriate evidence to support the request for an extension.
The attention of the parties is drawn to the provisions of s. 399A and s. 587 of the Fair Work Act 2009 relating to the dismissal of applications in certain circumstances.
Yours faithfully,
On 28 July 2023, the following email from the Respondent’s Representative was received by my Chambers and copied to the Applicant:
Dear Associate to Deputy President Roberts
We refer to your correspondence of 26 July 2023.
We are not in receipt of any correspondence from the Applicant. Please confirm whether Chambers is in receipt of an extension request by the Applicant?
In the absence of Chambers receiving the Applicant’s extension request by 4pm on 26 July 2023, the Respondent seeks the Application to be dismissed under section 399A (1) (b) of the Fair Work Act 2009 (Act), for failure to comply with a direction or order of the FWC relating to the application.
We attach the Form F1 for your consideration.
The Applicant is copied in on this email by way of service.
Kind regards
On 31 July 2023, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to previous correspondence and to the application by the Respondent below and attached to dismiss the originating application by the Applicant.
Chambers notes that it is not in receipt of any material from the Applicant in accordance with directions made on 12 July 2023 and has not received a request from the Applicant for an extension of time in which to file that material.
The Directions referred to in paragraph [4] above were made and included in the email.
On 7 August 2023, my Chambers sent the following email to parties:
Dear Parties,
Chambers refers to the above matter and to previous correspondence.
Noting that the Applicant has not filed any material by 4pm on Friday, 4 August 2023, the listing this morning at 11am AEST per the previous email is now vacated.Further directions from the Deputy President regarding this matter will follow in due course.
Yours faithfully,
On Friday 11 August 2023 my Chambers sent the following email to the Parties.
Chambers refers to the email to the Parties of 7 August 2023 and advises that no further directions will issue. The Deputy President proposes to deal with the Respondent’s application to dismiss the application on the basis of the material currently available. A decision in relation to the Respondent’s application will issue as soon as possible.
On Tuesday 15 August 2023 my Chambers sent the following email to the Applicant, copying the Respondent’s representative:
Chambers refers to previous directions and correspondence relating to the above matter.
We note that the matter is presently listed for a 2-day hearing commencing 22 August 2023. We note that you have not filed any material in support of the application or in response to the Respondent’s application that the matter be dismissed.
We also note that you have provided a medical certificate dated 20 July 2023 stating that you are ‘unfit for work’ from that date until 20 October 2023.
Given the reference in the certificate to you being unfit for work, Chambers now requests that you supply further medical evidence to demonstrate that your medical condition means that you are unfit to prepare for or participate in Fair Work Commission proceedings and if so the date by which you will be able to proceed with your application. We ask that this be provided as a matter of urgency but by no later than 12pm AEST on Thursday 17 August 2023. The Respondent should be copied-in to any response you provide to this email.
You are advised that in the absence of a response or appropriate medical evidence the Commission may proceed to determine the Respondent’s application to dismiss your application without any further notice to you.
No response was received to the email referred to above.
Relevant Legislation
Section 399A of the 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 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).
The Applicant was required by the Directions of 12 July 2023 to file material in support of the original application by 25 July 2023. She did not do so. The Applicant was given a number of opportunities to seek amendments to the directions that were issued on 12 July but she did not avail herself of those opportunities. On 31 July 2023 the Applicant was given another opportunity to file material in support of her application by 4 August 2023. She failed to take that opportunity. I conclude that the Applicant has failed to comply with direction number 1 of the Commission’s directions of 12 July 2023, the direction of 26 July 2023 and direction number 1 of the Commission’s directions of 31 July 2023. On 15 August 2023 the Applicant was given a final opportunity to contact the Commission and/or to provide further medical evidence.
There has been no further contact from the Applicant since 25 July 2023. In the circumstances I am satisfied that the Applicant has unreasonably failed to comply with directions of the Commission relating to an application under Division 4 of Part 3-2 of the FW Act.
The Respondent’s application pursuant to s.399A(1)(b) of the FW Act to dismiss the original application is granted. An order to this effect will accompany this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR765346>
0
0
0