Sarah Gibbs v Black Rhino (Players)
[2022] FWC 3382
•29 DECEMBER 2022
| [2022] FWC 3382 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Sarah Gibbs
v
Black Rhino (Players)
(U2022/10182)
| COMMISSIONER CIRKOVIC | MELBOURNE, 29 DECEMBER 2022 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application granted
On 19 October 2022, Ms Sarah Gibbs (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging she had been unfairly dismissed from her employment with Black Rhino (Players) (the Respondent). In her Form F2, the Applicant provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter.
On 14 November 2022, the file was allocated to my chambers. On that day, I listed this matter for a Case Management Conference (CMC) at 9:30AM AEDT on 23 November 2022, using Microsoft Teams.
On 23 November 2022, the Applicant, and Mr Dean Normington and Mr Peter Wade for the Respondent, attended the CMC. A timetable was agreed and written Directions for the filing of material were issued to the parties by email later that afternoon. The Applicant was directed to file her material by no later than 5:00PM Wednesday 7 December 2022.
No material was received by the Applicant by 5:00PM 7 December 2022. On 8 December 2022, my Chambers sent a non-compliance letter to the Applicant which advised that:
A Direction was issued on the Applicant to provide her material by 5:00PM on Wednesday 7 December 2022;
Chambers had no record of any material or response being received in accordance with that Direction;
Non-compliance with the Directions had the potential to impact on any continuation of the proceedings;
The Applicant’s urgent response was required within 3 days; and
A failure to respond may result in the dismissal of the Applicant’s application.
On 11 December 2022, the Applicant sent an email to Chambers which stated:
“I would like to offer my most sincere apologies regarding my failure to provide the aforementioned documents by the required deadline but due to unforeseen circumstances regarding a rather personal matter I’ve not had a phone or access to my emails for the last several days due to two factor authentication that was required to log in to my emails while I was without my phone.
Although these circumstances were out of my control I understand that this is not the issue of the commission but instead plead for leniency in the time frame I was given regarding the documents I need to provide.
- Regards, Sarah”
On 12 December 2022, I granted the Applicant’s request for an extension of time and issued amended Directions. The amended Directions required the Applicant to file her material by no later than 5:00PM on Friday 16 December 2022. The parties were also advised that any further requests for extensions of time would need to be accompanied by a signed witness statement explaining the need for the extension and supported by medical or other evidence as appropriate.
On 19 December 2022, my Chambers contacted the Respondent via telephone, advising that no material had been received from the Applicant by 5:00PM 16 December 2022. The Respondent indicated that it would file a s.399A application to dismiss the application.
Later that day, the Respondent filed a Form F1 application and served a copy on the Applicant. The relief sought was as follows:
“1 This application relates to Sarah Gibbs v Black Rhino (Players) – U2022/ 10182
2 The respondent was issued with Amended Directions by Commissioner Cirkovic on 12 December 2022 to provide, by 1700 Friday, 16 December 2022 the following documents in support of their s.394 -Application for unfair dismissal remedy:
·A written outline of their submission;
·A witness statement for each witness intended to call to give evidence at the hearing;
·A copy of any document intended to be relied upon; and
·Details of any relevant post-dismissal employment or earnings.
3 The respondent has failed to comply with the amended directions
4 The applicant seeks to have the matter dismissed”
The grounds for relief in the F1 were as follows:
“The applicant seeks to have the matter (Sarah Gibbs v Black Rhino (Players) U2022/10182) dismissed as the respondent has failed to provide the Commission and the applicant with the documents as directed by Amended Directions by 1700, Friday 16 December 2022, issued 12 December 2022.”
At approximately 4:25PM on 19 December 2022, the Applicant was sent an email from Chambers giving her an opportunity to respond to the Respondent’s s.399A application. The email was sent to the Applicant’s nominated email address. It attached the Respondent’s Form F1 and stated:
A direction was issued on the Applicant to provide its material to the Commission and to the Respondent by 5.00pm on Friday 16 December 2022;
Chambers had no record of any material or response being received in accordance with that Direction;
This was the second time the Applicant had not complied with a direction of the Commission, and that she had previously been granted a 7-day extension to file her material;
The Commission had not received an explanation for her non-compliance;
The Respondent had made an application pursuant to s.399A of the Act to dismiss her application;
That by reason of her non-compliance, it appeared that she had failed to comply with a direction or order of the FWC (s.399A(1)(b) of the Act).
She was directed to file with the Commission and serve on the Respondent submissions, evidence, or other documentary material in support, as to why the Commission should not dismiss her application, by no later than 4:00PM, 23 December 2022; and
If she did not provide reasons by 4:00PM 23 December 2022, that it was very likely her case would be dismissed without further notice.
At approximately 11:55AM on 20 December 2022, my Chambers attempted to contact the Applicant on her nominated mobile number. The call was not answered, and my Chambers advised the Applicant via voice mail that:
She had failed to file her material by 5:00PM Friday 16 December;
The Respondent had filed a s.399A application against the Applicant;
An email had been sent on 19 December 2022 directing her to provide a response; and
If Chambers did not receive any response her application could be dismissed without further notice.
To date, the Applicant has not filed any material with the Commission.
Section 399A of the FW Act provides:
“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:
(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.”
In Lockyear v Graeme Cox [2021] FWCFB 875 at [57] the Full Bench found:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
I have applied the reasoning of the Full Bench in coming to my decision.
Section 399A(2) is satisfied by the Respondent’s application of 19 December 2022. Similarly, s.399A(1)(b) is satisfied by the Applicant’s failure to comply with the direction to file her material by 5:00PM on 16 December 2022. The jurisdictional pre-requisites are met for the Applicant’s application to be dismissed and it is a matter of discretion whether I do so.
The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their “day in court.”[1]
The Applicant was served with a copy of the s.399A application on 19 December 2022 and given until 4:00PM 23 December 2022 to respond. A further attempt to contact the Applicant via mobile phone was made on 20 December 2022. In both attempts, the Applicant was advised that a failure to respond would likely result in her application being dismissed without further notice.
I am satisfied that the Applicant has acted unreasonably in failing to comply with the direction to provide her material by 5:00PM 16 December 2022. The Applicant had already failed to submit her material once and had been granted an extension on 12 December 2022. She has made no response to the repeated Commission’s attempts to contact her. Further, I consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application.
The Respondent is entitled to ask for finality. The Applicant has not taken up the opportunity to prosecute her case. In the circumstances, I see no utility in allowing the Applicant’s claim to continue, and I therefore grant the Respondent’s application under s.399A.
The Applicant’s application is therefore dismissed.
COMMISSIONER
[1] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
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