Nichole Lee Pinder v Ozcare

[2020] FWC 2155

[2020] FWC 2155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nichole Lee Pinder
v
Ozcare
(U2020/986)

DEPUTY PRESIDENT LAKE BRISBANE, 24 APRIL 2020

Applicant for an unfair dismissal remedy – application dismissed – s 399A.

[1] This decision concerns an application by Ms Nichole Pinder (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Ozcare (the Respondent) and claimed that she was unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 29 January 2020. A Form F3 Employer Response was filed by the Respondent on 11 February 2020. The matter was allocated to my Chambers for hearing and determination on 13 March 2020.

[3] Directions were sent to the parties on 24 March 2020. These directions listed a conference for 14 April 2020 and noted that the Applicant’s submissions were due on 15 April 2020.

[4] At the conference it became apparent that the Applicant was not prepared to file submissions in line with the above deadline. An extension was granted until 20 April 2020 and the below email was sent the following day confirming the extension::

Dear parties

Following yesterday’s conference the Deputy President issued an extension for the Applicant to file her written submission and witness statements by 12pm AEST, Monday 20 April 2020. The remainder of the dates will remain the same, however, if the Respondent requires further time they can request this at any time.

The Deputy President directs that a failure of the Applicant to file submissions after a lengthy extension can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent.

[5] Chambers did not receive any material from the Applicant and on 20 April 2020 the Respondent’s Representative, Murray Proctor sent the following email:

Dear Associate

As you know we act for the Respondent, Ozcare, in this matter. We refer to the revised directions, copy below, in which the Applicant (copied) was granted an extension until midday today to file her material.

The Respondent is still to receive any material from the Applicant, despite the extension of time.

The Respondent’s material in reply is due to be filed and served by 4pm Wednesday 6 May 2020, which is in two weeks and two days from today. Our client reserves the right to seek an appropriate extension of time to file their material, and otherwise wholly reserves their rights.

[6] On 23 April 2020, the Respondent submitted an application pursuant to s 399A(1)(b) that the application be dismissed due to a failure to comply with a direction or order of the Commission. The Respondent asserted that the Applicant had been given a reasonable opportunity to present her case, that no explanation or reason for the delay had been communicated and that she had been put on notice that dismissal of the application could occur in the email from Chambers on 21 April 2020.

[7] I sought to give the Applicant a final opportunity to explain her delay, directing my Associate to send the following email on 24 April 2020:

Ms Pinder, please contact Chambers immediately if you wish to proceed with your application.

You must provide your completed submissions, as well as an explanation for the delay in filing to Chambers by 4pm, Friday 24 April 2020.

A failure to do so will result in a determination being made regarding the Respondent’s application on the information currently at hand. It is likely that your claim will dismissed, as you have repeatedly failed to comply with the directions of the Deputy President.

(emphasis present in original)

[8] Since the initial conference, no correspondence or communication has been received explaining the Applicant’s failure to respond or file submissions by the appropriate date. The Applicant has been given sufficient time and numerous opportunities to file her submissions.

[9] I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute her claim. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 399A(1)(b).

DEPUTY PRESIDENT

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