Pamela Sherwin v Hunt's Wholesale Cars Pty Ltd T/A Hunt's Wholesale Cars Pty Ltd

[2018] FWC 3438

[2018] FWC 3438

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Sherwin
v
Hunt’s Wholesale Cars Pty Ltd T/A Hunt’s Wholesale Cars Pty Ltd
(U2018/2258)

COMMISSIONER BISSETT MELBOURNE, 12 JUNE 2018

Application for an unfair dismissal remedy.

[1] On 5 March 2018, Ms Pamela Sherwin (Applicant) made an application to the Fair Work Commission (the Commission) for relief for unfair dismissal. Ms Sherwin had been employed by Hunt’s Wholesale Cars Pty Ltd (Respondent).

[2] On 13 April 2018, following unsuccessful conciliation of the application, a Notice of Listing and Directions for hearing the application were issued. It required the Respondent to file submissions and evidence in relation to its jurisdictional objection that the Applicant had not been dismissed by 30 April 2018. The Applicant was to file her material in relation to the jurisdictional objection and the merits of her application by 8 May 2018 and the Respondent was to file any material in reply by 15 May 2018.

[3] Later that day, the Respondent sought that the directions be amended for reasons previously given so that it was not required to file any materials before 30 May 2018. On 18 April 2018, amended directions were issued which required the Applicant to file her material by 23 May 2018 and the Respondent to file its material by 11 June 2018.

[4] On 24 May 2018, an attempt was made to contact the Applicant to remind her that her submissions had not been received. She did not answer her phone and the Commission was unable to leave a voicemail message.

[5] On 28 May 2018, an email was sent to the Applicant advising that her submissions were overdue and that the matter may go to a non-compliance hearing if she did not file her material, or alternatively, seek an extension of time to do so. Following this email, the Applicant made contact with the Commission and advised that she had not received any material directing her to file submissions, but said she was working on it and would file the materials as soon as possible. She advised that she was no longer being represented. Later that same day, she made a request for an extension of time within which to file her submissions. This was refused by me as Termination of Employment panel head on 29 May 2018 and the matter was listed for a non-compliance hearing before me on 1 June 2018.

[6] On 1 June 2018, the Applicant and the Respondent both appeared by telephone for the non-compliance hearing. During the non-compliance hearing, I directed that the Applicant file her submissions and related material by 4.00pm on Monday 4 June 2018. The Respondent made an application under s.399A of the Fair Work Act 2009 (FW Act) that the application be dismissed on the grounds that the Applicant had failed to file her submissions in accordance with the directions issued by the Commission. In accordance with the provisions of Rule 6 of the Fair Work Commission Rules 2013, I waived compliance with the rules and accepted the application over the telephone. The directions that required the Respondent to file its materials by 11 June 2018 were set aside. Following the non-compliance hearing, a letter was sent to the parties directing the Applicant to file material in response to the s.399A application by 8 June 2018, and the Respondent to file a reply by 15 June 2018.

[7] Later that same day the Applicant filed with the Commission her witness statements and outline of arguments.

[8] On 3 June 2018, the Applicant sent an email to the Commission setting out her submissions as to why her application should not be dismissed pursuant to s.399A of the FW Act.

[9] On 5 June 2018, the Respondent filed its submissions in reply to those of the Applicant, as to why the application should be dismissed pursuant to s.399A of the FW Act.

[10] For the following reasons, I decided not to grant the application made pursuant to s.399A of the FW Act but rather issue amended directions to enable the matter to proceed to hearing. The parties were advised on 5 and 6 June 2018 that I did not intend to grant the application made pursuant to s.399A of the FW Act and that reasons for this decision would be issued in due course.

[11] The Applicant submitted that she attended the non-compliance hearing on 1 June 2018 and from there did comply with the directions of the Commission. She submitted that she had sought to settle the matter in negotiations with Mr Hunt of the Respondent and this had not been successful. She then outlined the factual situation as she saw it in relation to the end of her employment with the Respondent.

[12] Mr Hunt for the Respondent submitted that the Applicant had failed on two occasions to comply with directions of the Commission and that she had been given reasonable time to submit her paperwork. Mr Hunt raised issues with respect to the Applicant having another person present during the non-compliance hearing and then outlined the factual situation in relation to the end of the Applicant’s employment with the Respondent, including that she had not been dismissed and that, in any event, she had alternative employment. Mr Hunt said he had also sought to reach a settlement with the Applicant which had not been successful.

[13] Whilst I acknowledge that the Applicant did not comply with the original directions of the Commission, I am satisfied that she has ultimately done so in the terms of the directions issued to her on 1 June 2018. Whilst it is unfortunate that the Applicant’s non-compliance had to go to a hearing for resolution, the Commission should be careful not to act with undue haste in dismissing an application when compliance is gained.

[14] This is not to suggest that a party to proceedings should be given unlimited opportunities to comply and that was not the case in this instance. The matter proceeded to a non-compliance hearing within a week of the Applicant failing to comply with the amended directions of the Commission. The Applicant engaged appropriately in the non-compliance hearing. Being aware of the s.399A application, she complied with the further amended directions.

[15] Whilst I make no comment on the merits of the application, I would note that there are strongly contested facts between the Applicant and Respondent.

[16] I would note that the Respondent’s application for the directions to be varied made in April 2018 was granted. Had the Applicant made her application to vary the directions before the due date of her submissions on 23 May 2018, this may also have been granted. As it was, she made that application to vary directions after the required compliance date. The timing of that request suggested the matter could best be dealt with at the non-compliance hearing.

[17] An incidence of non-compliance does not automatically evidence an unreasonable failure to comply with directions as is required under s.399A(1)(b) of the FW Act. Further, even if the requirements under s.399A(1)(b) had been demonstrated, it remains a matter of discretion of the member concerned as to whether the s.399A application should be granted. A failure to file submissions does not result in an automatic dismissal of an application.

[18] For these reasons I decided that the s.399A application should be dismissed.

[19] Further directions for the filing of materials by the Respondent have been issued and the application is listed for hearing in mid-July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR608053>