Romana Valiyff v Lives Lived Well

[2021] FWC 6678

[2021] FWC 6678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Romana Valiyff
v
Lives Lived Well
(C2021/4655)

COMMISSIONER YILMAZ MELBOURNE, 23 DECEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Ms Romana Valiyff (Applicant) made an application on 6 August 2021 under s.365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Lives Lived Well (Respondent) for a proscribed reason in contravention of the general protections provisions in Part 3 -1 of the Act.

Background

[2] The application listed the Australian Municipal, Administrative, Clerical and Services Union (ASU) as the Applicant’s Representative. Correspondence from the ASU confirmed that the union was not acting as her representative.

[3] On receipt of the employer’s Form F8A the date of termination was identified as 15 July and not 16 July 2021, as was stated by the Applicant in her Form F8. On 2 September 2021, the Respondent was informed that even though they raised the jurisdictional objection, the matter will proceed to conciliation and if not resolved it would be referred to a member for an extension of time hearing.

[4] The matter did not proceed to staff conciliation following four adjournment requests made by the Applicant between September and November 2021. The initial telephone conference was scheduled for 13 September and a reminder sent on 7 September 2021. On 10 September 2021, the Applicant requested an adjournment, and the adjournment was refused. A further request on the same day for an adjournment was granted. The Applicant also requested an employment separation certificate which was provided by the Respondent.

[5] A further conference was scheduled for 8 October 2021. This notice was sent on 13 September 2021. In the morning of the scheduled conference on 8 October 2021, the Applicant sought a further adjournment. This adjournment request was granted, and the applicant was advised that further requests on the same grounds would be refused.

[6] A further notice of listing was sent to confirm the next scheduled conference for 12 November 2021. This notice of listing was sent on 11 October 2021 and on 12 November the Commission received an email from the Applicant half an hour before the scheduled conference advising that she was declining the conference and wished to proceed to hearing. The parties were advised that the conference was proceeding as scheduled. The Applicant did not respond to four telephone calls and two messages left by the Commission. The conference could not proceed without the Applicant.

[7] The matter was referred to my chambers on 15 November 2021. I received confirmation from the Respondent that they were willing to engage in a member conciliation to attempt to resolve the dispute. On 16 November a notice of listing was sent to the parties for a conference/ directions hearing to be held on 19 November 2021.

[8] On the day of the conference/ directions hearing, an hour and a half prior, the Applicant advised that she could not attend. After numerous unanswered calls, a voice message was left with the applicant advising that the conference would not be adjourned, and if she failed to attend, she risked having the matter dismissed. 10 minutes before the scheduled conference, the Applicant confirmed her attendance.

[9] Having confirmed the date of dismissal, the Applicant was informed that her application was out of time, and her options were to proceed to an out of time hearing, or because the Respondent agreed, proceed to a conciliation conference. It was explained to the Applicant that a hearing is to determine whether an extension of time would be granted. If an extension is not granted her application would be dismissed, and if an extension was granted the matter would proceed to a conference. The Applicant agreed to participate in a conciliation conference. Unfortunately, the Applicant was unable to advise what she was seeking to resolve the dispute and sought more time.

[10] The Applicant was granted an extension until noon 23 November 2021 to advise the Commission of her position to progress conciliation. The Respondent was informed that conciliation would resume on 23 November 2021 after the Applicant had obtained advice and articulated her position.

[11] Following the conciliation/ directions hearing and early on the morning of 23 November 2021, the Respondent advised the Commission and the Applicant, that it discovered an error in the final pay and that the two weeks’ notice in lieu was not paid in her final pay. The Respondent advised it would correct the error.

[12] Following the Respondent’s advice, the Applicant sent through two emails querying that her application was out of time, in one email she attached her letter of termination and stated that two weeks’ notice commenced from 15 July 2021.

[13] The Applicant was directed to advise the Commission what she was seeking by noon 23 November 2021. As her emails in the morning did not comply with directions, an email was sent before noon on 23 November 2021 to clarify her queries again regarding the out of time issue and grant her an extension to provide her position between 12:00 noon and 2:00pm to progress conciliation. The email to the Applicant was as follows:

“Good afternoon Ms Valiyff,

I refer to above matter and to your query regarding the timing of your lodgement dates.

Commissioner Yilmaz confirms that the application was made 1 day late. If the termination occurred on 15 July 2021 and the application was filed on 6 August 2021, 22 days has elapsed, leaving the application out of time.

Commissioner Yilmaz has made time between 12:00PM and 2:00PM to discuss the matter with you and confirm which course of action you would like to take.”

[14] The Applicant failed to contact the Commission as directed, and after numerous unanswered phone calls and messages, the Applicant phoned chambers at 5:00pm on 23 November 2021, and again questioned whether her application was out of time and did not put a position to progress conciliation. The Applicant also indicated that she was unsure whether she should proceed with the application. The Applicant’s attention was directed to her letter of termination, and it was confirmed with her that her employment ceased on 15 July 2021. Relevantly her letter of termination states:

“…Consequently, I have decided to notify you of our intention to terminate your employment by providing you with two weeks’ notice from today.

Payment of salary up to and including date of notice, payment in place of notice, and accrued annual leave entitlements will be made at the earliest opportunity within seven days.”

[15] Given the challenges to engage with the Applicant since the application was lodged with the Commission, and further to the telephone call, correspondence was sent to the Applicant again to clarify her options regarding her application. The email was sent at 5:58 pm on Tuesday 23 November 2021 as follows:

“Dear Ms Valiyff,

I refer to the above matter and to your conversation with Commissioner Yilmaz this afternoon.

During the discussion, the Commissioner set out two options with respect to your application:

•  If you wish to proceed with a conciliation conference, you are required to articulate which remedy you are seeking by 9am Friday 26 November 2021; or

•  Discontinue the matter by filing a F50 Notice of Discontinuance (attached).

For the matter to proceed, please telephone chambers by Friday 9am.

If you do not advise chambers as to which course of action you wish to take, action may be taken to dismiss the application for want of prosecution.”

[16] On 24 November correspondence was entered into to obtain the Applicant’s correct bank account details to ensure the two weeks’ payment in lieu of notice could be made.

[17] On 25 November the Applicant emailed chambers attaching her contract of employment and final payslip and advised that she believed she had been underpaid. Her email stated:

“Dear Commissioner,

I received lump sum total of $1195.42 for two weeks notice paid in lieu today which is an underpayment. Please see my employment contract below. I would like the correct amount that I’m owed. Looking at the separation certificate I’ve realised I’ve also been grossly underpaid. I have consulted with law firm who would like to participate in the conciliation but I understand that this may not be permitted. I’ve discussed pursuing other legal avenues. My priority as of now and goal for conciliation is to be paid the full amount I’m owed.”

[18] On 26 November 2021 an email was sent to the Applicant to remind her to contact chambers as previously directed:

“Good morning Ms Valiyff,

I confirm receipt of your employment contract and evidence of the payment of leave.

Please contact chambers at 9am to discuss which course of action you wish to take with regard to your current application before the Commission.”

[19] The Applicant contacted chambers after the email and stated she wished for her underpayment to be corrected, but she was unable to provide any particulars about the alleged underpayment. It was agreed that the Respondent would be asked to send through to her all of her payslips. The Applicant was informed that the Fair Work Ombudsman could assist her with her queries regarding underpayments. She informed the Commission that she had obtained legal advice and would advise early in the week commencing 29 November 2021 if she wished to proceed with her application.

[20] On 29 November 2021, the Respondent forwarded through all of the Applicant’s payslips and a breakdown of her payment in lieu of notice.

[21] On 6 December 2021, the Applicant did not answer calls or respond to a message about whether she intended to continue with her application. On 8 December 2021 further correspondence was sent to advise that the application will be dismissed unless there is an acceptable explanation as to why the order should not be issued. The email was as follows:

“Dear Parties,

The Commissioner notes that the Applicant has not yet advised of the remedy sought by way of the above s.365 application.”

The Applicant was given the following opportunities to advise the Commission of the remedy sought by way of the application:

On 19 November 2021 the Applicant requested a private conference with Commissioner Yilmaz to identify the remedy sought. Subsequently, the Respondent provided the Applicant with a separation certificate and copies of final payslips. However, the Applicant did not identify the remedy sought by way of the application.

•  On 23 November 2021 the Applicant was asked to articulate which remedy is sought by way of the application. The Applicant was asked to contact chambers at 9am Friday 26 November 2021 to clarify her position.

•  On 26 November 2021 the Applicant contacted the Commissioner but failed to identify the remedy sought by way of the application.

•  On 6 December 2021 an attempt was made to telephone the Applicant and a voice message was left, requesting that the Applicant contact chambers.

It is noted that the application is not properly before the Commission as it is out of time, and despite the Respondent’s participation to conciliate the matter, the matter has not progressed due to the Applicant’s limited engagement with the proceedings.

In view of the above, an order dismissing the matter will be issued tomorrow Thursday 9 December at 12:00PM, unless the Applicant provides an acceptable reason as to why the order should not be issued.”

[22] The Applicant did not respond to the correspondence as required, but simply sent through an ambit claim at 11:19AM on 9 December 2021. Further correspondence was sent to the Applicant asking her to address what was requested of her, that is the reasons why her application should not be dismissed.

[23] A response was received by the Applicant again failing to respond to the question put. A further email was received by the Applicant four minutes later, again failing to provide an acceptable response why the application should not be dismissed.

[24] No further correspondence had been received from the Applicant.

Consideration

[25] Due to the extensive opportunities given to the Applicant to progress her application, and her failure to comply with directions and genuinely engage, I now give my reasons for dismissing the application under s.587 of the Act.

[26] The Applicant advised after a number of failed attempts to engage in conciliation that she was seeking resolution of her underpayment. The Respondent complied with all the Applicant’s requests to provide information. The Applicant was informed that the role of the Commission was not to investigate or enforce alleged underpayments. Despite this, had the Applicant engaged in conciliation, and because the Respondent was willing to resolve the dispute by conciliation, the matter may have likely been resolved, had the Applicant engaged.

[27] The Applicant gave an undertaking on 26 November 2021, that she would confirm whether she would pursue her application. The Commission directed her to notify the Commission early in the week commencing 29 November 2021. Nothing further was heard from the Applicant, and she failed to respond to attempts to contact her on 6 December 2021.

[28] In response to correspondence on 8 December 2021, which sought an explanation why an order to dismiss the application should not be made, inadequate responses were received on 9 December 2021.

[29] General protections applications pursuant to s.365 of the Act are to be filed in the Commission in accordance with s.366(1), within 21 days after the dismissal took effect. I am satisfied that the dismissal took effect on 15 July 2021 and because the application was lodged on 6 August 2021, the application was lodged out of time. It is not contested that the Applicant did not work for the Respondent beyond that date.

[30] The letter of termination confirms payment in lieu of notice. Even though there was an error in the failure to pay the notice, the termination date does not turn on that matter. In any event, the Respondent took action to correct the error.

[31] Because the application was made outside the 21 day statutory time limit, the application is not properly before the Commission and throughout the Applicant has failed to comply with procedural directions.

[32] Section 587(1)(a) of the Act permits the Commission to dismiss an application if the application is not made in accordance with the Act. Further, the Commission may dismiss an application on its own initiative. As the Respondent sought to resolve the dispute by conciliation and the Applicant agreed, directions were issued to the Applicant of which she failed to comply with. There was no acceptable explanation from the Applicant why she did not comply with directions.

Conclusion

[33] The Application is out of time and is not made in accordance with s.366 of the Act. The Respondent and the Applicant agreed to participate in conciliation despite the jurisdictional objection that the application is out of time. Management of this matter has been challenging due to the Applicant’s failure to comply with directions. Directions had been amended on multiple occasions to give the Applicant ample opportunity to obtain advice and articulate her position.

[34] I do consider that the Applicant was given a fair opportunity to advance her application and engage in discussion to resolve her dispute. I note that despite the difficulty in engaging with the Applicant, her continued failure to comply with directions and respond to contact from the Commission, the Respondent has demonstrated patience and complied with every request from the Applicant.

[35] I am satisfied that I have discretion to dismiss the Application and have determined in consideration of the Commission’s attempts to engage with the Applicant since August 2021, that it is fair and reasonable to now dismiss the application.

[36] Accordingly, I have decided to exercise my discretion under s.587(1)(a) to dismiss the application and consider that it is fair and reasonable to do so.

COMMISSIONER

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