Slavica Popovic v DPG Services Pty Ltd T/A Opal Health Care

[2022] FWC 196

[2022] FWC 196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair dismissal

Slavica Popovic

v

DPG Services Pty Ltd T/A Opal Health Care

(U2021/8927)

Deputy President Lake BRISBANE, 31 JANUARY 2022

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

1. On 6 October 2021, Slavica Popovic (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by DPG Services Pty Ltd T/A Opal Health Care (the Respondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

1. Section 399A of the FW Act provides:

“(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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Procedural background

1. This matter was listed for a staff conciliation to see if the matter could be resolved between the parties, however it could not take place. 

1. The matter was allocated to my Chambers on 25 October 2021 for determination of the merits of the application. A notice of listing and directions were sent from my Chambers on 1 November 2021 setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 4 November 2021 at 12:00pm.

1. On 3 November 2021, my Chambers received an email from the applicant asking that we cancelled hearing as she would not be able to attend. My associate called the applicant and explained the purpose of the conference. The applicant agreed that she would attend with her husband. The conference took place but it quickly became apparent that no resolution was possible.

1. Despite the directions issued by me on one November 2021 and attached in one of the applicants replies (so she had clearly seen it), which required her to provide her material by 18 November 2021, no material has been received.

1. On 21 January 2022, my Chambers wrote to the Applicant confirming that nothing had been received from her since the conference, or indeed, since she filed her application. The email went on to state that:

“The Applicant is directed to provide any material in support of their material, as well as a written explanation as to the circumstances around her failure to comply with the direction in writing to Chambers and copied to the Respondent, by close of business tomorrow, 24 January 2021. If the Applicant fails to file is material as directed, the application may be dismissed.”

1. No response was received.

1. In the afternoon on 25 January 2022, the Respondent filed a Form F1 seeking that the Applicant’s application be dismissed as the Applicant had failed to meet the requirements to provide supporting evidence.  Shortly thereafter, my Chambers emailed both parties stating that:

“Dear parties

I refer to the above matter. I confirm receipt of the Respondent's application (attached) which seeks that the Applicant’s application be dismissed.

Ms Popovic, you have until 4pm on Thursday, 3 February 2022, to file a response to this application. If no response is received, the application may be dismissed prior to the listed hearing.”

1. This email inadvertently included the wrong date by which to file the material. To remedy that error, my Chambers wrote to the parties on 28 January 2022 in the following terms:

“Dear parties

I refer to my previous email in which I erred with respect to the date by which the Deputy President required the filing of material.

The hearing remains scheduled for 1 February 2022.

Ms Popovic, you have until 9am on Monday 31 February 2022, to file a response to this application. If no response is received, the application may be dismissed prior to the hearing.

I apologise for my earlier error.”

1. No response has been received.

Respondent’s submissions

1. In essence, the Respondent submits that the Applicant has not taken reasonable steps to comply with the Commission’s directions and file any material – beyond the Form F2 – in support if her application. 

Consideration

1. The Applicant has failed to comply with multiple directions of the Commission requiring that material be filed in support of her application. She has also failed to respond to a number of email following up same. She has been provided with ample opportunity to provide an explanation for her failure to do so but has not. The non-attendance and subsequent lack of response to Chambers attempts at communication by the Applicant has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act. The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox.[1] The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in her application being dismissed. I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed.

1. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

<PR737903>

[1] [2021] FWCFB 875 [57].

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