Sherrie Kamire v Northstar T/A Mercedes-Benz Hornsby

[2017] FWC 4669

[2017] FWC 4669

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sherrie Kamire
v
Northstar T/A Mercedes-Benz Hornsby
(U2017/8721)

DEPUTY PRESIDENT DEAN SYDNEY, 14 SEPTEMBER 2017

Application for relief from unfair dismissal – applicant failed to comply with directions of the Commission and failed to attend hearing - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 14 August 2017, Ms Sherrie Kamire made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Kamire said that she commenced employment with Northstar T/A Mercedes-Benz Hornsby (MB Hornsby) on 3 April 2017 and that her dismissal took effect on 14 August 2017.

[3] On 15 August 2017, the Commission wrote to Ms Kamire in the following terms:

“We refer to the above application for an unfair dismissal remedy.

As discussed and confirmed during our telephone conversation on Tuesday, 15 August 2017, your application indicates that you have not been employed for the minimum employment period required under the Fair Work Act 2009 (the Act).

Sections 382 and 383 of the Act require an applicant to be “an employee who has completed a period of employment with his or her employer of at least the minimum employment period”. If the employer is a small business employer, the minimum period of employment is one year which ends at the earlier of the date the employee is given notice of dismissal or, where no notice is given, the date of the dismissal. If the employer is not a small business employer the minimum period of employment is six months which ends at the earlier of the date the employee is given notice of dismissal or, when no notice is given, the date of the dismissal.

Section 384 of the Act also provides that your service with your previous employer may count as service with your new employer if there is been a transfer of business, you are not provided with written advice that your service with your previous employer would not count as service with your new employer and, your employment transferred to the new employer within 3 months of the termination of your employment with the previous employer.

You have advised that you were employed from 3/4/17 and dismissed on 14/8/17.

Accordingly, based on the information you have provided, you do not appear to have satisfied the minimum employment period. In these circumstances the Fair Work Commission (‘the Commission’) has no jurisdiction to deal with your application.

Within 14 days of the date of this letter, you are directed to file in the Commission any documents/evidence to support your claim that you have served the minimum employment period.

Contact details for Community Legal Centres in your State/Territory are provided at the end of this letter if you would like to get some independent advice about the options available to you.

To notify the Commission you do not wish to pursue your application, you should do one of the following:

● sign, and return to this office, the enclosed Notice of Discontinuance within 14 days; or

● call [phone] to discontinue your application by telephone; or

● send a letter, email or fax to the Commission confirming your wish to discontinue.

In the event that no documents/evidence is received from you within 14 days, your application may be dismissed.

Yours sincerely

Fair Work Commission”

[4] I will refer to the direction found in this correspondence as the First Direction.

[5] On 18 August 2017, further correspondence was sent from my Chambers to Ms Kamire confirming that based on the information contained in her application, it appeared she had not met the minimum employment period. The correspondence also explained that an application for unfair dismissal remedy could not succeed unless Ms Kamire’s period of employment was greater than 6 months. The correspondence confirmed the First Direction, requiring Ms Kamire to file in the Commission a statement to support her claim of having met the minimum employment period within 14 days. Ms Kamire was advised that if there was no response, her application would be determined on the material currently before the Commission.

[6] Ms Kamire responded that day, requesting that the matter proceed to hearing. During a telephone conversation with my associate on the same day, Ms Kamire confirmed her starting and finishing date of her employment, consistent with what was set out in her application.

[7] The application was listed for a jurisdictional hearing by telephone on 22 September 2017 to determine whether Ms Kamire had met the minimum employment period.

[8] The listing was issued on 1 September 2017 and Ms Kamire was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on, by 4pm Friday 8 September 2017 (the Second Direction).

[9] Ms Kamire failed to comply with the Second Direction. She did not contact the Commission prior, nor did she seek an extension of time to file the required material.

[10] On Monday, 11 September 2017, the legal representatives of MB Hornsby wrote to the Commission and Ms Kamire indicating they had not been served with any material as required by the Second Direction. MB Hornsby requested that the jurisdiction hearing be vacated and matter be dismissed for want of prosecution.

[11] Ms Kamire replied by email, indicating that she had received legal advice to the effect that she did not need to supply any material as required by the Second Direction. On that basis, and to ensure that Ms Kamire had a fair opportunity to present her case, I amended the Second Direction to allow her an additional two days to file the required material (the Amended Directions). The Amended Directions were accompanied by an email to Ms Kamire in the following terms:

“Dear Ms Kamire,

Your legal advice is incorrect. You are required to comply with Directions, this is not optional.

These proceedings only relate to whether you have met the minimum employment period.

The Directions are now amended. If you do not comply with the Amended Directions your application may be dismissed.

Please find attached a copy of the Notice of Listing and Amended Directions. Please note that the time and date of the hearing remains unchanged.”

[12] The Amended Directions issued on 11 September 2017 directed Ms Kamire to file an outline of submissions, any witness statements and other documentary material she wished to rely on by 4pm Wednesday 13 September 2017.

[13] Ms Kamire failed to comply with the Amended Directions. She did not contact the Commission prior to the time her material was due, nor did she seek an extension to file the required material, despite it being made clear to her that compliance with the Amended Directions was not optional, and that if she did not comply her application may be dismissed.

[14] The matter was then listed for a non-compliance hearing by telephone at 10am on 14 September 2017. Notification of the non-compliance hearing was provided by email to the parties at 4:52pm on Wednesday, 13 September 2017.

[15] Ms Kamire replied to the notification of the listing by email at 5:06pm stating that she was “not in a position to be part of this tomorrow. I’ve spoken with my lawyer and he is preparing the response but will not have all the facts to all parties until close of business Friday”.

[16] An email reply was sent to Ms Kamire from the Commission at 5:11pm in the following terms:

“Dear Ms Kamire

The Directions were clear, your material was due to be filed by no later than 4pm today, Wednesday, 13 September 2017. The purpose of the Hearing tomorrow is to consider whether or not to dismiss your application given your failure to comply.

You and/or your lawyer should attend if you wish to make submissions in this regard.”

[17] At 5:13pm Ms Kamire wrote to the Commission, indicating that she would not be in a position to take part in the non-compliance hearing and requested that the hearing be rescheduled. She sent a further email at 5:15pm stating that “…. you gave us 2 days notice that we had to have documents when legal advice given was opposite. I will not be able to take part and there is imminent material relevant that needs to be supplied to ensure I am given a fair and adequate opportunity to present my claims without any obstacles to unfairly not have all material supplied (sic).”

[18] In an email sent at 5:29pm, Ms Kamire stated that she could not attend the non-compliance hearing because she had a prior engagement with her lawyer “concerning action against the other party that I cannot. W amended or changed at the short notice (sic)”.

[19] The Commission replied to Ms Kamire at 5:31pm confirming that the hearing would proceed by telephone the following day and that Ms Kamire and/or her lawyer should make themselves available.

[20] On Thursday, 14 September 2017 at the scheduled hearing time of 10am, my associate called Ms Kamire who answered her phone. My associate advised Ms Kamire that she was calling in relation to the non-compliance hearing. Ms Kamire then said words to the effect of:

“I won’t take this call as advised in my email and I’m going to hang up now”.

[21] Ms Kamire was advised by my associate that the hearing would take place without her, and Ms Kamire then hung up.

[22] At the non-compliance hearing, Ms Jones, solicitor for MB Hornsby, made an application to dismiss Ms Kamire’s unfair dismissal application pursuant to s399A of the Act.

[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:

(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] Ms Jones submitted that Ms Kamire’s unfair dismissal application ought be dismissed under s.399A(1)(a) as Ms Kamire had failed to attend the non-compliance hearing without reasonable excuse or explanation. Ms Jones also submitted the unfair dismissal application ought be dismissed under s.399A(1)(b) as Ms Kamire had failed to comply with directions of the Commission relating to her application.

[25] The oral submissions made in support of this application focused on the chronology of events set out above.

[26] At the conclusion of the hearing I decided to dismiss Ms Kamire’s unfair dismissal application, and indicated that I would provide written reasons for my decision. Below are my reasons.

Failure to attend a hearing

[27] Based on the chronology of events set out above and the submissions made by Ms Jones during hearing, I am satisfied that Ms Kamire has unreasonably failed to attend a hearing conducted by the Commission in relation to her application.

[28] As set out above, in her email of 13 September 2017 at 5:29pm, Ms Kamire stated that she could not attend the non-compliance hearing because she had a prior engagement with her lawyer “concerning action against the other party that I cannot. W amended or changed at the short notice (sic)”. The non-compliance hearing was heard by telephone and did not require her to attend the Commission. Given Ms Kamire’s advice that she was going to be with her lawyer at the time scheduled for the non-compliance hearing, I do not accept that she was unable to attend by telephone.

Failure to comply with directions

[29] I am also satisfied that Ms Kamire has unreasonably failed to comply with directions of the Commission on three occasions, those being:

● the First Direction, contained within the correspondence from the Commission to Ms Kamire dated 15 August 2017;
● the Second Directions issued on 1 September 2017; and
● the Amended Directions issued on 11 September 2017.

[30] There is no doubt that Ms Kamire was aware of the nature of the jurisdictional hearing, i.e. to determine whether or not she had met the minimum employment period. A hearing of this nature, in circumstances where there was no suggestion by Ms Kamire of service with a previous employer that might count as service with MB Hornsby, does not require detailed or lengthy evidence or submissions. It is simply a matter of establishing the date her employment commenced and the date her employment ceased. She was on notice from 15 August 2017 that this was what she was required to address. The timeframes provided were adequate and reasonable in the circumstances for her to demonstrate whether she had met the minimum employment period.

[31] Ms Kamire was clearly on notice, both by the Commission and the legal representatives of MB Hornsby, that her application was at risk of being dismissed if she did not comply with the directions made by the Commission. In this regard, the correspondence sent by the Commission made it abundantly clear that compliance with the directions was not optional. Despite that, she did not at any time seek an extension or variation to the directions had been made, nor did she indicate any difficulty in complying with the directions for any other reason.

Conclusion

[32] After considering chronology of events and all of the material including the emails from Ms Kamire, I have decided to dismiss the Ms Kamire’s application for remedy from unfair dismissal, based on my findings that she has unreasonably failed to comply with the Commission’s directions, and unreasonably failed to attend a hearing held in relation to her application.

[33] An order to that effect will issue with these Reasons.

DEPUTY PRESIDENT

Appearances:

No appearance on behalf of the applicant

R Jones for Northstar T/A MB Hornsby

Hearing details:

2017.

Sydney (by telephone):

September 14.

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