Ms Roberta Rimac v dnata Airport Services Pty Ltd

[2022] FWC 401

[2022] FWC 401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Roberta Rimac
v

dnata Airport Services Pty Ltd

(U2021/11126)

DEPUTY PRESIDENT CROSS SYDNEY, 29 MARCH 2022

Applications for relief from unfair dismissal – whether Applicant unreasonably failed to comply with Commission directions – s.399A of the Act – application dismissed.

Introduction

1. Ms Roberta Rimac (the Applicant) was employed by dnata Airport Services Pty Limited (the Respondent), at Sydney International Airport Precinct (Sydney Airport) prior to her dismissal on 11 November 2021. The Applicant contended that her dismissal was harsh, unjust and unreasonable. The Respondent denied those allegations.

Relevant facts and directions

1. On 2 December 2021, the Applicant filed an Unfair Dismissal Application (the Application) by email with the Fair Work Commission (the Commission). The Application initially proceeded together with three other applications from co-workers of the Applicant, Ms Joanna Hadjipavli, Ms Wafica Mourtada and Ms Mariam Gharib.

1. Shortly before 23 December 2021, the Application was allocated to my Chambers for determination. On 23 December 2021, my Chambers emailed a Notice of Listing to the parties with listing details of a Hearing, by video, on 10 and 11 February 2022. The email also included Directions dated 23 December 2021 (the Directions) that provided at direction 1 for the Applicant to file her outline of submissions, witness statements and other documentary material by 4pm on 12 January 2022.

1. The Directions included the following notes:

“a) If you wish to vary these directions, you can make an application to do so in writing directly to the chambers of Deputy President Cross at: [email protected]
…
“c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.”

1. On 12 January 2022 at 10:35am, Ms Mourtada emailed my Chambers on behalf of the Applicant “requesting to have a few more days to submit our documents (witness statements etc)”. The reason for the request for an extension of time was that “two of the applicants have been very unwell and unable to provide the information required.”

1. On 12 January 2022 at 2:39pm, my Chambers emailed the parties granting the request for an extension and confirming the following amendment to direction 1 of the Directions (the Amended Direction):

“Roberta Rimac, Joanna Hadjipavli, Wafica Mourtada and Mariam Gharib (the Applicants) are directed to file with the Commission, and serve on Dnata Airport Services Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicants intend to rely on in support of the applications in this matter by 4pm on 14 January 2022.”

1. The Amended Direction included a note that “failure to comply with the revised timetable may result in your cases being dismissed.”

1. On 17 December 2021 at 8:48am, the Respondent sent an email to my Chambers and the Applicant regarding the Applicant’s non-compliance with the Amended Direction.

1. On 18 January 2022 at 12:10pm, the Respondent sent a further email to my Chambers and the Applicant regarding the Applicant’s continued non-compliance with the Amended Direction. In the email the Respondent made an application under section 399A(1)(b) of the Fair Work Act 2009 (the Act) for the Commission to exercise its discretion to dismiss the Application on the basis that the Applicant had unreasonably failed to comply with a direction of the Commission relating to the Application (the s.399A Application).

1. On 18 January 2022 at 3:20pm, my Chambers sent an email to the Applicant and the Respondent that provided as follows:

“The Applicants are requested as a matter of urgency to forward any submissions or other documents filed in compliance with amended Direction 1 to the Respondent. Please note that the Respondent’s representative, Mr Burke (copied), is the appropriate contact for such service. Please serve all documents to the Respondent by 4:00pm 19 January 2022.

In light of the above, and assuming receipt of the Applicant’s materials by the above deadline, Deputy President Cross is content to grant a commensurate extension of time within which the Respondent may file their documents. An amended Notice of Listing will be dispatched later this afternoon reflecting same.

The Respondent is requested to confirm whether, given the above extension, they press the s.399A application to dismiss as made in earlier correspondence to Chambers.”

1. On 18 January 2022, the Respondent sent an email to my Chambers confirming the Respondent would not press the s.399A Application if the Applicant filed and served her documents by 4:00pm 19 January 2022 (the Further Amended Direction). 

1. On 19 January 2022 at 4:49pm, the Respondent sent an email to my Chambers and the Applicant regarding the Applicant’s continued non-compliance with the Directions, the Amended Direction and the Further Amended Direction. The Respondent again made the s.399A Application.

1. On at 9.15am on 20 January 2022, and 10.05am on 24 January 2022, the Applicant requested a further extension of time to file her documents. On 25 January 2022, at 10.14am, my Chambers replied by email as follows:

“I advise that the Deputy President has not granted your request for an extension of time within which to file your documents.

Should you wish to make any further request for an extension of time, you will need to provide substantial reason, and any supporting documents relevant to your extension request.

I note that the Respondent has made an application in respect of s.399A in this matter, being an application to dismiss your matter. Further directions and information in relation to these proceedings will be forthcoming.

Please ensure that you copy in the Respondent (Mr Burke, who is copied in to this email), and refer to the matter number in correspondence with Chambers so that your queries can be dealt with more expediently.”

1. On 25 January 2022 at 2:52pm, the s.399A Application was listed for hearing and directions were made for the filing and serving of documents and submissions (the s.399A Directions). The Applicant did not thereafter comply with the s.399A Directions. On 3 February 2022, the Respondent complied with the s.399A Directions by filing an Outline of Submissions and a Statement of Mr Seamus Burke.

Relevant Legislation

1. Section 399A of the Act provides as follows:

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).

1. The FWC may exercise its power under subsection (1) on application by the employer.

1. This section does not limit when the FWC may dismiss an application.

Consideration

1. The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the  Act on application  by an  employer, in  circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.

1. The Explanatory Memorandum to the Fair Work Amendment Bill 2012,  which amended the  Act to  include the  provision,  said in  relation  to  s. 399A applications, that  the intention of the 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.”[1]

1. In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting [2](“Whittaker”), Deputy President Clancy summarised the relevant principles in considering s. 399A, drawing on a  decision  of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v  Aon Risk Services Australia Limited [3](“Ghalloub”).  The Deputy President summarised the relevant principles as follows:

“The role of  case management was discussed by  the  Full Bench of  the  Australian Industrial Relations Commission in Ghalloub v  Aon Risk Services Australia Limited (Ghalloub). In summary, that decision outlined the following principles:

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

2.directions play an important role in case management;

3.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;

4.the circumstances of each case is central;

5.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;

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

1. The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia[4](“Viavattene”):

“... It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

1. Section 381 of the Act provides:

Object of this Part

(1)The object of this Part is:

(a)   to establish a framework for dealing with unfair dismissal that balances:

(i)the needs of business (including small business); and

(ii)the needs of employees; and

(b)   to establish procedures for dealing with unfair dismissal that:

(i)are quick, flexible and informal; and

(ii)address the needs of employers and employees; and

(c)   to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

1. The Applicant was aware of the requirement for her to file and serve materials she intended to rely on in support of the Application. This requirement was set out in the Directions, the Amended Direction, and Further Amended Direction. The Applicant repeatedly and unreasonably failed to comply with any of the directions made by the Commission to file and serve materials in support of the Application without explanation.

1. I accept the Respondent’s submission that the Applicant’s failures have occurred in circumstances where she was clearly informed about:

(a)       the necessity to comply with the directions; and

(b)       what could occur if she did not comply with the directions; and

(c)       the resources available to assist her to prepare the requisite materials; and

(d)       the Respondent’s objection to the issue of her non-compliance; and

(e)       a s.399A application being the potential consequence of non-compliance with directions.

1. Those failures have been further compounded by the Applicant’s failure to comply with the s.399A Direction, or attend the hearing of the s.399A Application.

1. The Respondent has throughout appropriately sought to ensure the Applicant’s compliance with all directions issued. That has without doubt resulted in unnecessary expense to the Respondent. It would be unfair to the Respondent to allow these protracted proceedings to continue.

1. In the circumstances of this matter it is appropriate that I exercise my discretion to dismiss the Application pursuant to s.399A(1)(b) of the Act as sought by the Respondent.

DEPUTY PRESIDENT

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

[2] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd [2018] FWC 2201, decision of Masson DP.

[3] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

[4] [2013] FWCFB 2532, at [39].

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