Phillips v Access Industries for the Disabled

[2016] FWC 2690

[2016] FWC 2690

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Christine Phillips
v
Access Industries for the Disabled Ltd
(U2015/5361)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 29 APRIL 2016
Application for relief from unfair dismissal.

[1]        On 12 May 2015, Ms Christine Phillips made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Phillips’ employment

had been terminated by Access Industries for the Disabled Ltd on 23 April 2015.

[2]        The matter was listed for conciliation on 2 June 2015. Ms Phillips requested a long

adjournment and this was not granted. Consequently, directions were issued and the matter

was listed for hearing on 5 August 2015.

[3]        Ms Phillips was directed to file an outline of submissions, any witness statements and

other documentary material she wished to rely on by noon, on 29 June 2015.

[4]        On 19 June 2015, Ms Phillips requested an indefinite adjournment on medical grounds

and also requested an extension to file her submissions.

[5]         The hearing date of 5 August 2015 was vacated and the matter was listed for 19

August 2015.

[6]        On 30 July 2015, the hearing date of 19 August 2015 was again vacated.

[7]        On 12 August 2015, Senior Deputy President Drake’s associate advised Ms Phillips

her application for an indefinite adjournment had been referred to SDP Drake to determine.

[8]        On 26 August 2015, Ms Phillips provided medical information supporting her

adjournment request.

[9]        On 30 October 2015, Ms Phillips provided further medical certificate supporting her

adjournment request.

[10]      On 11 November 2015, Senior Deputy President Drake’s chambers advised Ms

Phillips the matter would be recalled in February 2016 and the matter would be listed for

hearing.
[2016] FWC 2690

[11]      On 25 February 2016, Senior Deputy President Drake determined that the application

should proceed to arbitration and Ms Phillips was sent an email advising same.

[12]      On 3 March 2016, Ms Phillips advised the Commission that she would not be able to

give the matter any further consideration until she was cleared to do so by her medical

specialist.

[13]      On 4 March 2016, the matter was listed for hearing on 9, 10 and 11 May 2016 and Ms

Phillips was directed to file an outline of submissions, any witness statements and other

documentary material she wished to rely on by noon, on 29 March 2016.

[14]      On 6 March 2016, Ms Phillips advised she would not be able to give the matter further

consideration until she received clearance from her medical specialist.

[15]      On 7 March 2016, the Commission emailed Ms Phillips requesting a medical report

from her medical specialist.

[16]      On 1 April 2016, the Commission emailed Ms Phillips requesting she contact the

Commission to advise when she intended to file your submissions. She was advised if no

response was received, the matter would be listed for non compliance hearing.

[17]      On 3 April 2016, Ms Phillips emailed advising she didn’t have clearance to pursue this

matter.
[18]	On 12 April 2016, Ms Phillips emailed advising her medical specialist had strongly

recommended that she not proceed with any matter of this type.

[19]      The matter was listed for a non compliance hearing before me on 13 April 2016.

[20]      Ms Phillips did not attend the non compliance hearing. Access Industries made an oral

application, pursuant to section 399A of the Act, that the matter be dismissed as Ms Phillips

had failed to comply with the direction of the Commission. I waived compliance with the Fair

Work Commission Rules 2013 and accepted Access Industries’ oral application.

[21]      On 13 April 2016, Ms Phillips was sent correspondence informing her of Access

Industries’ section 399A application. Ms Phillips was directed to file submissions and other

documentary material in respect of Access Industries’ application by close of business, on 27

April 2016. Ms Phillips was advised that if she failed to comply with this direction, her

application would be dismissed.

[22]      Ms Phillips did not file any material with the Commission.

[23]      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:

[2016] FWC 2690

(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.

[24]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[25]      As Ms Phillips did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[26]      Ms Phillips relied on her medical condition to explain her non compliance. Ms

Phillips was dismissed in April 2015. She has been granted significant extensions of time to

enable her to comply with the directions. Despite this she has advised that she is unable to

comply. Ms Phillips’ request for a further adjournment was denied. She did not appeal that

decision. As at the date of this decision, Ms Phillips has not filed any material to support her

claim. I find given the length of time Ms Phillips has had to file material that her failure to

comply is unreasonable.

[27]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. The Commission is required to afford a fair go to both applicants and

respondents. It is unfair to expect a respondent to have to respond to an unfair dismissal

application 12 months after the dismissal. Delay of this magnitude will prejudice the fair

hearing of this claim. In those circumstances, I will exercise my discretion and dismiss Ms

Phillips’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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