Sarah Mallah v McDonalds Australia

[2015] FWC 2620

[2015] FWC 2620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Mallah
v
McDonalds Australia
(U2015/2959)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 16 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Sarah Mallah alleged that the termination of her employment by McDonalds Australia (McDonalds) was unfair.

[2] On 5 March 2015, directions were issued to Ms Mallah to file material in support of her application. That material was due on 30 March 2015.

[3] On 31 March 2015, Ms Mallah advised a member of the Fair Work Commission’s staff that she would need to post her material to the Commission as her scanner was not working.

[4] On 31 March 2015, McDonalds applied under section 399A of the Fair Work Act 2009 (the Act) for Ms Mallah’s application to be dismissed because Ms Mallah did not participate in the conciliation scheduled by the Commission and Ms Mallah had not filed her material in accordance with the directions.

[5] On the same day, Ms Mallah sent an email to the Commission requesting an extension. She advised that she would post her material that day.

[6] On 1 April 2015, Ms Mallah was sent a copy of the section 399A application and asked to respond to that application by 13 April 2015. A copy of that letter was provided to McDonalds.

[7] On 1 April 2015, McDonalds were advised that Ms Mallah had told the Commission that she had posted her material to the Commission and were advised that McDonalds were required to comply with the directions.

[8] Ms Mallah submitted her material to the Sydney registry of the Commission on 10 April 2015.

[9] On 10 April 2015, Ms Mallah sent an email to the Commission advising that she had been unable to participate in the conciliation because of a death in the family and her religious protocols provided for a 10 day mourning period. She advised that she had been looking for work and had started a new job and as she was working 9-6 Monday to Friday, it was difficult for her to get witness statements and documents. She said she took the day off work to personally deliver the documents to the Commission.

[10] On 14 April 2015, Ms Mallah advised that she had forgotten to file her submissions and they were emailed to the Commission on 15 April 2015.

[11] On 14 April 2015, McDonalds submitted that the reason Ms Mallah did not participate in the conciliation was unacceptable. It submitted that had Ms Mallah notified the Commission of her unavailability, it would have agreed to adjourn to a different date.

[12] McDonalds submitted that Ms Mallah’s explanation for the delay does not amount to exceptional circumstances.

Consideration

[13] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[14] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[15] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[16] In summary, that decision said:

• the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[17] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

[18] I note in passing that there is no requirement that Ms Mallah establish that her reasons for non compliance amount to exceptional circumstances to successfully defend an application to dismiss her application. The concept of exceptional circumstances applies to applications for an extension of time and is not applicable to section 399A applications.

Consideration

[19] Ms Mallah did not participate in the conciliation and did not advise the Commission that she was not available. I accept Ms Mallah’s explanation for her non participation but this does not explain her lack of courtesy in not advising the Commission that she was not able to attend. However, participation in conciliation is voluntary and her application should not be dismissed because she failed to participate.

[20] Ms Mallah did not comply with the Commission’s directions and did not seek an extension of time prior to her compliance date. However, she did not ignore her obligations. Ms Mallah advised the Commission the next day that she was unable to email her material. While she did not post it as advised, she did deliver some of the required material to the Commission and subsequently emailed the rest of her material.

[21] This is not a case where Ms Mallah has a history of non compliance. I would not exercise my discretion to dismiss this application.

[22] Therefore, McDonalds application to dismiss is dismissed.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [162- 163].

 3   PR956665.

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