Sharon Cuthbertson v St Michaels Association Inc

[2019] FWC 6066

[2019] FWC 6066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharon Cuthbertson
v
St Michaels Association Inc
(U2019/4494)

COMMISSIONER BISSETT MELBOURNE, 4 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 18 April 2019, Ms Sharon Cuthbertson (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In responding to the application, the Respondent raised a jurisdictional objection to the application in that it says the dismissal was a genuine redundancy. Following an unsuccessful conciliation of the application, directions were issued for the filing of submissions and evidence of both the Applicant and St Michaels Association Ltd (Respondent) which required the Respondent to file its submissions and evidence with respect to its jurisdictional objection by 19 June 2019. The Applicant was required to file her material as to the merits of her application and in response to the objections of the Respondent by 26 June 2019.

[3] The Respondent filed its material on 28 June 2019. The directions were amended on 27 June 2019, 12 July 2019, and 18 July 2019. The directions were amended again on 23 July 2019 following a non-compliance hearing. The Applicant was required to file and serve her material by 2 August 2019.

[4] On 6 August 2019, the Respondent made an application that the unfair dismissal application of the Applicant be dismissed because the Applicant had failed to comply with the directions of the Commission. The application was listed for a non-compliance hearing on 9 August 2019. Following the non-compliance hearing, correspondence was sent to the Applicant seeking submissions as to why her application should not be dismissed. The most recent directions were set aside pending the determination of the application under s.399A of the FW Act. These submissions were required to be filed by 16 August 2019.

[5] On 15 August 2019, the Commission received the Applicant’s submissions with respect to her substantive application for unfair dismissal.

[6] On 15 August 2019, the Applicant filed submissions as to why her application should not be dismissed. She submitted as follows:

•  She requested an extension to the first date to file of 26 June 2019 as the Respondent failed to file its material and she had been waiting for that material.

•  She sought an extension to 5 July 2019 as her laptop charging port was not working and she could not access anything on her computer.

•  She requested an extension to the filing dates of 15 and 19 July 2019 as she was stressed and unwell and the NBN was not working.

•  She requested an extension to the due date of 2 August 2019 as she could not access her email and the NBN was still not working. She said that she contacted the Commission’s case management team who advised her to post her material to the Commission. She purchased two express post envelopes and posted her submission on 2 August 2019. On advice from the Commission on 6 August 2019 that her submissions had not arrived, she provided the express post tracking numbers to the Commission. She was unable to locate the envelopes through Australia Post’s tracking service and Australia Post could not track them.

•  She posted her submissions again on 14 August 2019.

[7] The Applicant submits that she has “worked non-stop regardless of being sick and having many things go wrong” to get her material filed with the Commission. For these reasons she says the application of the Respondent should be dismissed.

[8] The Respondent says that the application should be dismissed because of the series of non-compliance incidents by the Applicant. It includes in that non-compliance the failure of the Applicant at various times to include the Respondent in emails she has sent to the Commission seeking an extension.

Conclusion

[9] I have carefully considered the history of this matter and the submissions of both the Applicant and Respondent. I have determined in this case that the application of the Respondent under s.399A should be dismissed. The effect of this decision is that the application for relief from unfair dismissal will proceed.

[10] I have reached this decision for a number of reasons.

[11] Firstly, the first cause of the request by the Applicant for an extension to directions was the non-compliance of the Respondent with the initial directions issued. This failure to comply by the Respondent (regardless of its reasons) caused confusion to the Applicant.

[12] Secondly, it appears that for all bar the first request for an extension of time to file, the requests for an extension were made in advance of the established filing date the Applicant sought to have extended. In this respect, she was not “non-compliant” until she failed to meet the filing date of 19 July 2019. Following a non-compliance hearing, the Applicant was required to file by 2 August 2019. On this date, she contacted the Commission and advised them of her computer problems and was advised to post her submissions.

[13] Thirdly, I am satisfied that the Applicant has sought to engage with the Commission on most occasions when she became aware she would not comply with a date, and has responded to queries from the Commission as to the status of her submissions. Having said this, I do accept that the material provided by the Applicant does not evidence that she did, in fact, post her material to the Commission on 2 August 2019 as she said.

[14] The failure of the Applicant to copy the Respondent into correspondence, whilst regrettable, is not reasonable grounds to dismiss the Applicant’s application for relief from unfair dismissal. The Respondent was aware of the applications made by the Applicant on advice from the Commission. The Applicant is reminded however that she is required to copy the Respondent into all her correspondence to the Commission.

[15] This application has had a regrettably extended history to date. However, the Respondent’s jurisdictional objection arguments have been made and the Applicant’s material has been received. There is no reason for any further delay in dealing with the application.

[16] Amended directions will be issued separately.

COMMISSIONER

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