Ms Sharlene Lane v Trustee of the Society of St Vincent de Paul NSW

[2015] FWC 5460

[2015] FWC 5460

FAIR WORK COMMISSION

DECISION

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

Ms Sharlene Lane
v
Trustee of the Society of St Vincent de Paul NSW
(U2013/12634)

DEPUTY PRESIDENT BULL SYDNEY, 28 OCTOBER 2015

Application for relief from unfair dismissal, applicant’s failure to attend hearings; non-compliance with directions; s.399A application by the respondent, application dismissed unreasonable non compliance.

[1] On 15 August 2013, Ms Sharlene Lane (the applicant) made an application for a remedy in relation to an alleged unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Lane alleges in her application she was dismissed on 18 July 2013 and notified of the decision on 25 July 2013. Ms Lane alleges that the termination of her employment was a constructive dismissal 1.

[2] The application names SVDP as the employer.

[3] The Employer’s Response (F3) identifies the legal name of the employer/respondent as Trustee of the Society of St Vincent de Paul NSW 2, trading as SVDP Support Services. Pursuant to s.586(a) of the Act, the application is amended to reflect the name of the true and correct employer.

[4] The respondent submitted that the applicant commenced employment in the position of Service Manager at the Vincentian Village on 26 June 2006, and sustained a workplace injury in or around March 2008, and apart from a brief period of a couple of days in May 2009, Ms Lane had not worked from March 2008 till the date of her termination.

[5] The Employer’s Response states that an attempt was made to resume her position as of May 2009 3 with a return to work plan to fulfil administration duties as part of her Service Manager’s position, but this return to work plan ceased a short time later. Following this, the employer made several attempts to facilitate a return to work plan for the applicant which due to the level of restrictions placed on Ms Lane’s capacity also failed. In particular, Ms Lane advised that “she cannot have client contact as part of her role”. The applicant was advised that all roles would need to come into contact with clients, and based on that information, suitable duties were not available. Further correspondence by the employer was sought from Ms Lane to “see what her intentions to return to work would be”.

[6] St Vincent’s submitted that Ms Lane’s employment was terminated on the grounds of redundancy as a result of not having any suitable duties in accordance with her return to work plan, and Ms Lane’s position having become redundant as a result of a transition of services and restructuring to Vincentian House (the applicant’s workplace). Ms Lane received 5 weeks’ pay in lieu of notice and 13 weeks redundancy. 4

Background

[7] The unfair dismissal application was listed for telephone conciliation with a Fair Work Commission conciliator on 9 October 2013. At the conciliation, the parties apparently reached an agreement to settle the application, with the applicant’s then legal representative, Ms Susan Grey to draft the terms of settlement following the conciliation.

[8] Ms Lane informed the Fair Work Commission (the Commission) on 24 January 2014 via written correspondence that the parties had failed to reach an agreement subsequent to the conciliation. In that correspondence Ms Lane requested that the matter be listed for hearing.

[9] The matter was subsequently allocated to me for determination. Directions were issued on 19 February 2014, where the parties were directed to file submissions by certain dates, namely the applicant was to file her submissions by 10 March 2014, and the respondent by 31 March 2014. The matter was listed for hearing on 7 May 2014.

[10] Submissions were received from the applicant on 19 March 2014, being 9 days later than the requested compliance date. The respondent’s submissions were filed within the requisite time frame.

Proceedings

[11] At the 7 May 2014 hearing, Mr Daniel O’Sullivan of counsel sought leave under s.596 of the Act to appear for the respondent in the proceedings. With respect to Mr O’Sullivan’s permission to appear, Ms Lane stated that she felt disadvantaged. 5

[12] As the matter was adjourned on Ms Lane’s request, the matter of legal representation was not dealt with. The hearing was temporarily adjourned at 10.35am to facilitate discussions between the parties.

[13] Following the discussions between the parties, Ms Lane requested an adjournment, 6 of the hearing stating that she felt ‘inadequately represented and disadvantaged’7 and ‘unprepared’8 and that she would be better represented having a legal representative.9It was noted to the applicant that she had been put on notice for some time about the hearing, with the Notice of Listing sent to parties on 17 April 2014, some 3 weeks prior to the hearing.

[14] The hearing was adjourned on the basis of Ms Lane obtaining legal advice. Ms Lane was to advise the Commission within a week (being 14 May 2014) as to whether she had obtained legal representation.

[15] The applicant was asked how the Commission should contact her in regard to the relisting of the matter and the applicant advised this was best done via email. Ms Lane advised that her ‘bigpond’ email account ([email protected]) was “not reliable”.

[16] A second email address for the applicant was obtained from Ms Lane: [email protected]. All subsequent email correspondence from the Commission to the applicant has been addressed to both the “bigpond” and the “hotmail” addresses.

[17] No advice as to the applicant’s legal representation was received at the end of the 7 day period.

[18] The applicant subsequently advised the Commission on 21 May 2014, via email ([email protected]) that she wanted the matter to proceed to hearing. On 2 June 2014 my chambers requested the parties advise the Commission of their availability for the relisting of the matter. It was requested that the parties provide a response by 5 June 2014.

[19] On 6 June 2014, Ms Lane advised that she was waiting on course workshop dates to be confirmed and would advise of her availability when she knew of her workshop training provider’s availability. The issue of her legal representation was not raised by Ms Lane.

[20] Some nine months later as no advice of Ms Lane’s hearing availability had been received as requested; an email was sent to the applicant on 31 March 2015 asking whether she wished to discontinue her application. Ms Lane replied on the same day stating that her parents had been unwell, and that she wished to continue pursuing her application. In reply to the applicant’s email, my chambers again requested Ms Lane advise the Commission of a suitable hearing date by 2 April 2015, so that the matter could be relisted.

[21] No response was received from Ms Lane, and my chambers again corresponded to the applicant on 13 April 2015. Ms Lane replied on 17 April, stating that she had been in a remote desert, and therefore had ‘only just received the email’ (from her ‘hotmail’ email account) from the Commission and wished to pursue her application. Ms Lane advised that she would be available for hearing in mid-June and early July 2015.

[22] The matter was subsequently listed for 17 and 18 June 2015. The Notice of Listing was sent to parties on 21 April 2015, which included advice to both the applicant’s email addresses.

[23] A day before the hearing, 16 June 2015, the applicant emailed the Commission at 12.22pm requesting that the matter be adjourned as she had been unwell for 3 weeks and unable to travel. In response, the Commission requested that the applicant provide medical documentation to support her request for adjournment. No such documentation has been provided to the Commission to date.

[24] Subsequently, an amended Notice of Listing was sent to parties on 16 June 2015, relisting the hearing for 4 and 5 August 2015.

[25] The applicant did not attend the 4 August hearing. Mr Brain Forbes for the respondent and Mr Daniel O’Sullivan, counsel for the respondent were present. At 10.10am, my associate telephoned the applicant and left a voice message advising that the matter was before the Commission, and requesting that she contact my associate in the first instance. My associate tried calling the applicant’s mobile thereafter 3 times unsuccessfully. Having waited for the applicant’s appearance for more than half an hour, Mr Forbes and Mr O’Sullivan were excused from the Commission.

[26] My chambers wrote to the applicant advising her of the proceedings, and that the hearing listed for the next day, 5 August 2015 would be cancelled until the Commission received correspondence from the applicant. The applicant replied to the Commission’s email the next day, 5 August 2015 stating that she had received no communication with respect to any proceedings relating to her application, and that she only received a voice message stating that the matter had already started. A copy of the receipt of the sent Notice of Listing, noting that this had been sent to both the applicant’s supplied email addresses was subsequently sent to the applicant.

[27] Following the applicant’s absence at the listed 4 August 2015 hearing, the respondent made an application to dismiss the unfair dismissal application under s.399A(1)(a) of the Act.

[28] The applicant responded to the respondent’s application to have the matter dismissed on 11 August 2015, stating that she was not aware of the listed date of the hearing, being 4 August 2015 and that she did not want the matter dismissed.

[29] In light of the applicant’s strong position for the matter to proceed, directions were issued on 12 August 2015, requesting the parties file their respective submissions in relation the application for dismissal by the respondent. The matter was originally listed for hearing on 12 October 2015 however as Mr Forbes, for the respondent was on annual leave that day, the matter was relisted on 26 October 2015.

[30] The respondent was directed to file submissions by 28 August, which were complied with, and the applicant to file her submissions by 11 September 2015. No submissions in response to the s.399A application from Ms Lane were received.

[31] Ms Lane was again absent at the 26 October 2015 hearing. Mr O’Sullivan of counsel, and Mr Brian Forbes were present for the listed hearing. At 9.15am and 9.25am, my associate telephoned Ms Lane’s mobile which was not answered. Voice messages were left advising that the matter was before the Commission for hearing, and requesting her call my chambers. My associate again called the applicant on 2 further occasions; 10:00am and 10.10am, and again the applicant did not answer with my associate leaving further voice messages, advising her to contact the Commission. Having waited for the applicant’s appearance for more than an hour, Mr Forbes and Mr O’Sullivan were excused from the Commission.

[32] At 10.15am, my chambers received a recorded voice message from Ms Lane:

“Hi my name’s Sharlene Lane, last I heard was that Brian Forbes was on annual leave and I understood it had been postponed, I’m actually in Alice Springs looking for work, St Vincent De Paul’s have not paid the ten thousand dollars they promised they would pay in the Fair Work Commission 12 months ago. If they paid the money, we wouldn’t be there, they promised they would pay the $10,000 and they haven’t. St Vincent De Paul’s said they would pay the $10,000 and it hasn’t been received and they haven’t paid it. My phone number’s …. (same as previously supplied). I apologise for not actually being there, I actually thought it wasn’t on. Thank you.”

[33] My associate then called Ms Lane, where she was advised that the Commission had not received any submissions regarding the s.399 application, and that Directions were issued on 12 August 2015 for her to file submissions and that an amended Notice of Listing was sent to parties on 14 August 2015 to accommodate Mr Forbes being on annual leave. All correspondence to the applicant was sent to both her email addresses, with proof of receipt that the emails had been electronically sent.

[34] At 12.20pm that day (26 October 2015), my chambers then received an email from Ms Lane advising that she ‘been in remote communities across ‘APY’ lands, central Australia and internet access, telecommunications are minimal and highly inconsistent’. Ms Lane’s email further stated that ‘I did not receive the email dated 15 October up until today when I went into Alice Springs library. If I had seen it, I would have responded. I appreciate the commissions time is valuable’ (sic).

[35] Ms Lane’s email went on to further elaborate meetings she has held with the various staff members of the respondent to review her employment file (although omitting the date of when the meetings took place) and that the respondent at no time, held discussions with her regarding the termination of her employment or relocation, and that she has been at the same address and same phone number for over 12 years, and that the only communication received was a letter of termination.

[36] On 27 October 2015, my chambers received an email from a Ms Kim Cooper, who the applicant has previously stated attended a mediation with her. Ms Cooper’s email sheds no light on the applicant’s reasons for non-compliance with directions or non-attendance at hearings.

[37] Section 399A of the 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.

....

(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.”

[38] The evident purposes of s.399A is to provide the Commission with an additional discretion to dismiss unfair dismissal applications on application by an employer where there is a relevant unreasonable act or omission by an applicant in relation to non-attendance at a conference or hearing, non-compliance with a direction or order, or a failure to discontinue a settled application. Unreasonable in this context would include non-compliance without any reasonable excuse. 10

[39] A summation of Ms Lane’s activities in relation to her unfair dismissal application and the employer’s dismissal application is contained below:

● 19 February 2014 Commission Directions	Applicant did not comply with due date of submissions as per the Directions issued 19 February 2015.
● 7 May 2014 hearing applicant requested adjournment to seek legal representation was to advise Commission within 7 days	No advice on legal representation received.
● 6 June 2014 request for hearing availability dates	No advice received after promising to provide this information as she was waiting on course workshop dates to be confirmed.
● 31 March 2015 further requests from Commission whether applicant wished to continue with application and for availability dates by 2 April 2015	Applicant advised she wished to continue application, no response received for further request for available dates.
● 16 June email advice from Ms Lane unable to attend 17 June 2015 hearing as unwell. Request from the Commission to provide medical certification	Applicant has not supplied any medical documentation as requested.
● Relisted 4 August 2015 hearing	Applicant failed to attend hearing and advised did not receive notice of listing.
● 12 August 2015 matter listed for hearing on 12 October and Directions to file submissions on respondent’s dismissal application issued.	Applicant did not file any submissions in accordance with the Directions issued 12 August 2015.
● 14 August matter relisted to 26 October due to respondent’s unavailability.	Notice of listing emails sent to both Ms Lane’s email addresses
● Relisted 26 October 2015 hearing.	Applicant failed to attend hearing and subsequently stated she had not monitored her emails regularly.

[40] The applicant’s position on not having received any correspondence with respect to the Notice of Listing for 4 August 2015 is strange as the Notice of Listing was sent to both the applicant’s email addresses, and the Commission’s records verify that the email correspondence had been electronically sent to those email addresses. The receipts indicating that Notices of Listing as having been sent to her emails were forwarded to the applicant on the same day.

[41] A ‘fair go’ must also be afforded to both parties as prescribed in s.381 of the Act. The employer is entitled to adequately ascertain whether the applicant is pursuing a claim against them, and not be expected to waste their time and resources if the applicant is not intending to proceed expeditiously with their claim. In this instance, the respondent had attended the Commission on 3 occasions, only to find the applicant absent from the hearing on two occasions, and request an adjournment on one occasion during the course of that hearing.

[42] Ms Lane was been given notice of the respondent’s s.399A application and has been afforded opportunity to respond in writing to the application. She failed to attend the hearing on the basis that she did not view the email advising of the hearing which was sent on 14 August until the day of the hearing 26 October 2015 some 6 weeks later.

[43] I am satisfied that Ms Lane has unreasonably failed to comply with the directions of the Commission and attend hearings as set out above. Ms Lane has been provided with every opportunity to advance her case and has not done so. The Commission has taken all the necessary steps to inform and update Ms Lane of the proceedings relating to her claim

[44] Ms Lane’s latest explanation for not attending the 26 October 2015 hearing was that she had limited access to her email account. It is the applicant’s responsibility to stay abreast of her own application, not to check her emails for a period of at least 6 weeks is unreasonable particularly following her failure to attend the unfair dismissal hearing on 4 August. The applicant could have telephoned the Commission at any time to check on the status of hearing dates.

[45] Given that the applicant has been given a number of opportunities in which to respond and make contact with the Commission, and to attend hearings the applicant has been afforded a ‘fair go’ in light of the objects of the Act.

[46] In the interests of fairness to all parties, Ms Lane’s application needed to be dealt with promptly. A degree of flexibility can be allowed to parties to accommodate various vicissitudes they may face, however a line must be drawn on allowing a matter to meander endlessly. In all of the circumstances I consider that line has arrived on the basis that Ms Lane has unreasonably failed to comply with Commission directions and attend Commission listed hearings.

[47] The employer’s application to exercise my discretion to dismiss the unfair dismissal application pursuant to s.399A is granted.

[48] The application is dismissed.

DEPUTY PRESIDENT

 1   See transcript PN95 to PN99 and written submissions of 19 March 2015

 2   ABN 46472591335

 3   See “Timeline of Events” attached to the F3

 4   Tab G of respondent’s submissions of 11 March 2014

 5   PN4

 6   PN 131

 7   PN143

 8   PN145

 9   PN147

 10   See the Explanatory Memorandum to the Fair Work Amendment Act 2012 at 161 - 163.

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