Norma Serrano v Filipino Community Council of Victoria Incorporated

[2016] FWC 559

[2016] FWC 559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Norma Serrano
v
Filipino Community Council of Victoria Incorporated
(U2015/11348)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 26 August 2015, Ms Norma Serrano made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Serrano’s employment had been terminated by Filipino Community Council of Victoria Incorporated on 7 August 2015.

[2] The matter was the subject of conciliation, however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing. 1

[3] Ms Serrano was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 21 December 2015.

[4] On 24 December 2015, Ms Serrano requested an extension to file her submissions. She advised she was overseas, her access to email was very limited and she did not have all her paperwork with her. A further period of time was granted and Ms Serrano was required to file her material by 6 January 2016.

[5] On 5 January 2016, Ms Serrano wrote to the Fair Work Commission seeking an adjournment of the hearing, as she required more time to search for legal representation and prepare her submissions.

[6] On 6 January 2016, Ms Serrano filed her Form F2 – Unfair Dismissal Application again. She advised she was seeing a lawyer in a few weeks and asked that she be allowed to file other pertinent documents, including witness statements, before the hearing.

[7] Also on 6 January 2016, Mr John Ruddell, FCCVI’s representative, filed an objection to the application and sought the dismissal of Ms Serrano’s application. FCCVI based their objection on grounds which include failure to comply with a direction of the Commission. FCCVI submitted that Ms Serrano failed to comply with directions on two occasions and on the last occasion, gave no indication of when she would be in a position to serve her material. FCCVI further submitted that Ms Serrano had had ample opportunity to seek legal advice and had not done so.

[8] On 7 January 2016, I granted Ms Serrano an extension of time to file her material and caused amended directions to be sent to the parties, allowing Ms Serrano until noon on 13 January 2016 to file her material. FCCVI was directed to file its material by noon on 27 January 2016.

[9] Further correspondence was sent to Ms Serrano on 7 January 2016, informing her of FCCVI’s section 399A application. Ms Serrano was directed to file submissions and other documentary material in respect of FCCVI’s application by close of business, on 18 January 2016. Ms Serrano was advised that if she failed to comply with this direction, her application would be dismissed.

[10] On 13 January 2016, Ms Serrano filed an outline of submissions and witness statements which related to the application for unfair dismissal remedy.

[11] On 18 January 2016, Ms Dimitra Panagopoulos filed a Notice of Representative Commencing to Act for Ms Serrano and submissions in response to the application to dismiss under section 399A of the Act. Ms Panagopoulos submitted that an extension of time was sought and granted by the Commission in December 2015. Ms Panagopoulos submitted that Ms Serrano attempted to secure legal advice, however this was at a time of year when legal professionals are virtually on leave en masse, and so Ms Serrano was unable to secure legal representation given the scarcity of available resources.

[12] Further, Ms Serrano returned from an overseas holiday on 1 January 2016, a holiday which had been taken at the suggestion of her treating medical practitioner. Ms Panagopoulos submitted that FCCVI’s withdrawal of consent to resolve the matter caused Ms Serrano to act in a manner detrimental to her capacity to conform with the Commission’s directions. Ms Panagopoulos submitted that Ms Serrano did comply with the directions in an expedient manner once she returned from her holiday, filing and serving her evidence on 13 January 2016. She submitted that there would be no material prejudice to FCCVI, who has been represented from the earliest juncture of the proceedings, in preparing their material for the hearing.

[13] On 19 January 2016, I caused directions to be sent to FCCVI that it file its material in reply to Ms Panagopoulos’ submissions opposing dismissal of the application, by 4.00pm, 25 January 2016. I further extended the time for FCCVI to file its material in opposition to the substantive application to noon on 1 February 2016.

[14] On 22 January 2016, FCCVI filed its submissions in reply. It said regarding the medical evidence relied on by Ms Serrano that she had been able to file her application for unfair dismissal remedy within time, represented herself at conciliation and executed terms of settlement. In January 2016, she was able to file material in support of her application. FCCVI submitted therefore that Ms Serrano’s medical condition does not provide a valid explanation as to why she has been unable to comply with directions to file material.

[15] Regarding Ms Serrano’s absence from the jurisdiction while on holidays, FCCVI submitted that Ms Serrano has not submitted that she was unaware of or did not receive the directions to file her evidence, therefore FCCVI assumed she had access to her emails but chose not to email the Commission seeking an extension of time while overseas.

[16] I do not accept this submission as Ms Serrano emailed the Commission on 24 December 2015, albeit after the compliance date, advising that she was overseas and she did not have all her paperwork with her and sought an extension of time.

[17] FCCVI submitted that Ms Serrano’s lack of legal representation had not prevented her from filing her application, attending conciliation and executing terms of settlement, and consequently was not a valid reason for not being able to comply with directions. FCCVI also submitted that its withdrawal of consent to settle the matter was communicated to Ms Serrano on 15 November 2015, which it submitted had no effect on Ms Serrano’s ability to comply with the Commission’s directions.

[18] On 22 January 2016, my chambers wrote to both representatives, asking if they consented to me determining the section 399A application on the papers. Both representatives advised of their clients’ consent to this course.

Conclusion

[19] 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. 2

[20] The Explanatory Memorandum said 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.” 3

[21] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 4.

[22] 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
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[23] 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.

[24] I am not satisfied that Ms Serrano has unreasonably failed to comply with a direction of the Commission. She has been in communication with the Commission in December 2015 and January 2016. Ms Serrano sought extensions of time to file her material, albeit on one occasion after the compliance date. Ms Serrano has filed her material in support of the substantive application in accordance with the amended directions. Even if I had found her non-compliance was unreasonable I would not in my discretion have dismissed this matter. Ms Serrano has not indicated an unwillingness to have her matter ready for hearing. She has now filed her material. In these circumstances, I will dismiss FCCVI’s section 399A application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1   I note the file records that a settlement was reached but the FCCVI resiled from that settlement despite there being signed terms of settlement.

 2 S.399A of the Fair Work Act 2009

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

 4   PR 956665

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