Paige-Jemma Porteus-Marcantelli v Manpower Services (Australia) Pty Ltd T/A Manpower
[2022] FWC 2815
•19 OCTOBER 2022
| [2022] FWC 2815 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paige-Jemma Porteus-Marcantelli
v
Manpower Services (Australia) Pty Ltd T/A Manpower
(U2022/9192)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 19 OCTOBER 2022 |
Application under s.399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed.
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Act) by Manpower Services (Australia) Pty Ltd (Respondent) to dismiss an unfair dismissal application brought against it by Ms Paige-Jemma Porteus-Marcantelli (Applicant).
On the Form F2 unfair dismissal application filed by the Applicant, the Respondent was listed as ‘Manpower’. On the Form F3 Employer Response Form, the legal name is listed as ‘Manpower Services (Australia) Pty Ltd’. This discrepancy is noted however neither party raised this as an issue.
On 13 September 2022, the Applicant filed pursuant to s.394 of the Act for remedy from unfair dismissal. The information provided in the application and in the employer response form lodged by the Respondent indicates that the application was made out of time. Specifically, the Applicant reported that she was dismissed from her employment on 18 August 2022. The Act requires an unfair dismissal application be made within 21 days after the dismissal takes effect. The application was lodged 5 days late.
The application was referred to Vice President Catanzariti who, on 16 September 2022, directed the Applicant to provide an explanation as to why she considered her circumstances were exceptional and to provide evidence to support the reasons for the delay in lodging. The Respondent was directed to complete the Form F3 Employer Response Form.
On 19 September 2022, the Applicant responded by email to the chambers of Vice President Catanzariti providing the reason for her delay as follows:
“I was unsure if I had been unfairly dismissed from volvo (working for manpower) and I spoke to my friend who is a Fair work ombudsman.
He reassured me that how I was let go was very unprofessional and I should seek further assistance in the matter. I posted the unfair dismissal within the 20 day time frame. The delay has been caused by delay in post and that is out of my control. I hope you accept this as an exceptional circumstance as I did post it within the specified time frame.”
On 23 September 2022, the matter was allocated to me. I issued Directions requiring the Applicant (and the Respondent) to file materials and for an extension of time hearing to occur at 10:00am on 26 October 2022.
The Directions required, among other things, that the Applicant file her material by no later than 4:00pm on Friday 7 October 2022. The Directions also informed that the material must be provided by the date specified. The Applicant did not comply with the Directions.
On 5 October 2022, my Chambers sent correspondence to both parties informing that the matter would additionally be listed for a preliminary conference at 2:00pm on 20 October 2022.
On 10 October 2022, my Chambers sent correspondence to both parties indicating that it appeared that the Applicant had not complied with the Directions. I directed the Applicant provide an explanation for this by no later than 4:00pm, the following day on 11 October 2022.
The Applicant failed to comply with this further direction. On 12 October 2022, my Chambers sent further correspondence which indicated that the previously scheduled conference listed for 20 October 2022 would proceed as a non-compliance hearing. The Applicant was warned in this email that in the absence of any material filed by her, that the matter may be determined without further reference to her.
On 13 October 2022, the Respondent filed a form F1 pursuant to s.399A of the Act. Later that same day, I directed the Applicant, by way of email, to provide reasons as to why the matter should not be dismissed by 18 October 2022, in response to the application made by the Respondent. The correspondence to the parties highlighted that in the absence of anything filed by the Applicant, that the non-compliance hearing would be vacated and the matter would be decided on the papers, however if the Applicant were to follow my directions then the non-compliance hearing listed for 20 October 2022 would proceed.
The Applicant again failed to comply with my directions of 13 October 2022 and did not provide any response to the application made by the Respondent. Nor did the Applicant provide an explanation for failing to follow my directions of 23 September, 10 October, 12 October and 13 October.
To date, Chambers has not received any form of communication from the Applicant.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s.399A(1)(b)). I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conferences and to file her materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:
(A)The Applicant has repeatedly failed to offer any reasonable explanation for her failure to comply with the directions or attend the listed conferences.
(B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so.
My discretion to dismiss the Applicants’ unfair dismissal application under s.399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my multiple directions and the fact that she has persisted in failing to file her materials or to respond to directions seeking explanations for such failures. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. The Respondent is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness.
For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.399A.
Pursuant to s.399A, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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