[2021] FWC 5083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Srebrenka Kljaic
v
Eagers Automotive Pty Ltd
(U2021/4215)

COMMISSIONER HUNT

BRISBANE, 24 AUGUST 2021

Application for an unfair dismissal remedy - applicant showed no willingness to prosecute application – non-compliance with Commission directions – failure to attend non-compliance hearing without reasonable excuse – application dismissed.

[1] On 17 May 2021, Ms Srebrenka Kljaic made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009, alleging she was dismissed from her employment with Eagers Automotive Pty Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

[2] On 25 May 2021, the Respondent filed a Form F3 Employer Response to the application. No jurisdictional objections were raised.

[3] Following allocation to my chambers, on 29 June 2021 I issued directions for the filing of materials in preparation for hearing in late August 2021. The matter was listed for a telephone conference before me on 9 July 2021. Ms Kljaic attended the telephone conference. The Respondent was represented by Ms Sheree Tarman, People & Safety Manager QNT, and Ms Janelle White, General Manager, Southside Toyota.

[4] During the conference, Ms Kljaic advised that she had secured new employment two weeks following her dismissal, and she earned a significantly enhanced base salary in the new role when compared with her base earnings with the Respondent. Noting Ms Kljaic did not seek reinstatement, I discussed with Ms Kljaic the maximum compensation which could be awarded to her in the event the Commission found she had been unfairly dismissed. I discussed with her the provisions of s.392(2) of the Act, and the regard the Commission must have for the remuneration earned by her in her new job.

[5] It appeared to me the maximum amount of compensation that could be awarded to Ms Kljaic would be approximately $1,730.77 gross. The Respondent made a without prejudice offer to settle the unfair dismissal application by the payment of that amount within seven days. Ms Kljaic rejected the offer. Accordingly, she was reminded she was directed to file her material by 20 July 2021.

[6] On 17 July 2021, Ms Kljaic sent the following correspondence to my chambers without copying in the Respondent:

“Good evening.

Can you please request my original contract, letter of transfer and exit letter. I have requested and they will not provide.”

[7] On 19 July 2021, the following correspondence was sent by my chambers to Ms Kljaic, copying in the Respondent:

“Dear Ms Kljaic

Chambers kindly reminds the parties that all correspondence directed to the Commission in respect of this matter must copy-in all parties to this matter.

As to your request below, the Commissioner advises that it is open to you to complete and file a Form F52 “Application for an order for production of documents, records or information to the Commission”.

The form for doing this is available from the link below and copies of the form are also attached:

Order requiring production of documents etc to Fair Work Commission | Fair Work Commission (fwc.gov.au)

When lodging the form with Chambers, you must copy the Respondent in your email.”

[8] Ms Kljaic failed to file her material by 20 July 2021. An extension of time had not been sought by Ms Kljaic, however I considered it suitable to grant one until 27 July 2021. On 26 July 2021, the following correspondence was sent by my chambers to Ms Kljaic, copying in the Respondent:

“Dear Ms Kljaic

I refer to the above matter in which you are the Applicant.

The Directions made on 29 April 2021 (attached) required you to provide the material listed by no later than 4:00pm Tuesday, 20 July 2021.

To date, Chambers has not received your material as outlined in Direction [1].

The Commissioner now directs that the Applicant file her material as outlined in Direction [1] of the Directions dated 29 April 2021 by 4:00pm (AEST) Tuesday, 27 July 2021.

If the Applicant fails to provide her material in accordance with the above by that time, this matter will be listed for a non-compliance hearing at 9:15am (AEST) on Friday, 30 July 2021, where the Applicant will risk having her application dismissed for want of prosecution.

The Commissioner wishes to draw the Applicant’s attention to the procedural power in s.587 of the Fair Work Act 2009 (attached).

The power of the Commission to dismiss an application for want of prosecution rests in s.587(1)(c).

The application may be found to have no reasonable prospect of success if the Applicant will not provide the evidence required and directed to the Commission.”

[9] Ms Kljaic again failed to file the material as directed. Accordingly, the non-compliance hearing of 30 July 2021 occurred. Ms Kljaic attended, together with Ms Tarman and Ms Lyndal Bailey for the Respondent.

[10] Ms Kljaic offered no reason, other than she was busy, for not having complied with the directions to file her material. She committed, on record, to filing and serving her material by no later than 4 August 2021. Amended directions were issued, noting the hearing date now had to be vacated given Ms Kljaic’s failure to meet the directed timetable for the filing of material.

[11] On 4 August 2021, Ms Kljaic rang my chambers and spoke briefly with my Associate. Later the same day she sent the following email, which I understand, in addition to her initial application to be the totality of her written material she wished for the Commission to consider constituting her evidence and submissions in her application:

“Good afternoon.

In support of my submission. I am stating that I was unfairly dismissed. My initial submission outlined the events that occurred leading up to my dismissal.

There are so many examples that I can provide to support my claim. I was asked by Deb Birdthistle, after Ms White started “ what did I want to do with my career, did I want to go back to Suncorp”. Richard Potts “ I thought we would lose you when we transferred you to Woolongabba, extra 30 minutes travel each way for you”.

Everything possible was done to push me out. To be told “ good luck to her getting a job with Eagers again” - why? What did I do to Eagers? Ceased contact with an individual that was mentally abusing me? So I need to lose my job as well?

I was told that I will get paid for deals delivered after I left. I haven’t been paid for a deal to date. I left with 40 applications/contracts handed over, estimate $3000 income per contract.

With recent covid lockdown I have not been able to source legal advise to ascertain if this is an adverse action claim as well as unfair dismissal claim.

I look forward to your response.”

[12] On 5 August 2021, the following correspondence was sent by my chambers to the parties:

“Dear Parties

The Commissioner advises that she is unimpressed by the Applicant’s attempt to put a witness statement to the Commission so that the application can be progressed. It is noted that during the non-compliance hearing on 30 July 2021, the Applicant gave a full undertaking to the Commission that she would comply with the directions given by the Commissioner and the extension of time afforded to her to comply.

The directions issued are now vacated.

The Applicant is directed to file and serve a detailed and substantive witness statement to the Commission by no later than 4:00pm Tuesday, 10 August 2021. In the event the Applicant fails to do so the Commissioner advises she is likely to dismiss the application for want of prosecution.

The Commissioner notes that the Applicant is not a disadvantaged person; there is no language barrier or disability preventing the Applicant from complying with the Commissioner’s directions. The Commissioner notes that many parties before the Commission are self-represented and prepare their material for the Commission’s consideration in their own time if they have other employment or other responsibilities.

Until such time as the Applicant makes a formal application for an order for production of documents using the forms provided to the Applicant, no such order will be made by the Commission. If the Applicant files a complete witness statement, she may await the Respondent’s material to determine if there is any material not provided in the Respondent’s evidence which she may then request the Commission order the Respondent to produce.

To be very clear, in the event the Applicant does not file a detailed and substantive witness statement by 4:00pm Tuesday, 10 August 2021, the Commissioner advises she is likely to dismiss the application.

I have attached a document from the Commission’s website (in word and pdf format) which may further assist the Applicant in preparing her statement. The document is also accessible here: On 10 August 2021, Ms Kljaic left a voice message to my chambers. She emailed one minute later to ask for her phone call to be returned. My Associate attempted to call her but there was no answer. My Associate emailed her asking her to advise the matters she wished to raise.

[14] Having again failed to file material as directed, the matter was listed for a second non-compliance hearing at 3:00pm on 13 August 2021. At 7:12pm on 12 August 2021, Ms Kljaic sent the following email to my chambers:

“Good evening.

Apologies are we able to reschedule to Monday please?”

[15] The following correspondence was exchanged on 13 August 2021:

(a) From chambers:

“Dear Ms Kljaic

I refer to the above matter and the non-compliance hearing listed at 3:00pm (AEST) this afternoon by telephone.

The Notice of Listing issued on Wednesday, 11 August 2021 provides:

“This notice of listing is definite. An adjournment will only be granted at the discretion of Commissioner Hunt and only on substantial grounds.

Adjournment requests:

1. MUST be in writing;

2. MUST be received in a timely manner outlining substantial grounds as to why the date should be changed; and

3. Such written requests must be copied to all other parties.”

You have not outlined any reason as to why you cannot attend by telephone today at 3:00pm (AEST).

Could you urgently provide your reason(s) as to why the date must be changed. If you do not provide reasons, your request will be refused.”

(b) From Ms Kljaic:

“Hi.

I have a doctors appointment at 2.20pm.”

“Dear Parties

Further to the Applicant’s request for an adjournment, the non-compliance hearing by telephone has been brought forward to 1:30pm (AEST) today, Friday, 13 August 2021.

The Commissioner anticipates that the non-compliance hearing by telephone will take no longer than 20 minutes.”

(d) From Ms Kljaic:

“Hi.

Please change this to next week. I have appointment today and I am not available.”

[16] The non-compliance hearing took place at 1:30pm as listed, as I was not satisfied Ms Kljaic was unavailable to attend. My Associate attempted to call her twice at the commencement of the hearing. Mr Tarman appeared for the Respondent and advised that the Respondent had made an offer to Ms Kljaic in excess of the $1,730.77 it appears could be awarded to Ms Kljaic, as a maximum amount of compensation in the event her claim succeeded.

[17] Following the hearing the following correspondence was sent by my chambers to the parties:

“Dear Parties

Reference is made to the above matter.

The Commissioner advises the non-compliance hearing listed for 1:30pm (AEST) today went ahead in the Applicant’s absence. Two attempts were made to call the Applicant's telephone. These calls were not answered.

The Applicant did not provide any suitable explanation for her failure to attend the hearing.

The Commissioner notes the Applicant’s continued failure to comply with the directions issued by the Commission. The Commissioner considers it disturbing that the Applicant gave an oral undertaking to the Commission on 30 July 2021 at the first non-compliance hearing to provide a detailed witness statement by 4 August 2021, and then failed to do so. Instead, the Applicant wrote a short email declaring, “There are so many examples that I can provide to support my claim.” The Commissioner reminds the Applicant that substantive hearings do not permit the giving of voluminous oral evidence-in-chief. That is, the Applicant is strictly not permitted to attend a hearing and then given oral evidence that has not been earlier seen in writing by the Commission and by the Respondent.

The Commission has written to the Applicant to remind her that she is not a disadvantaged person. The Commissioner considers that the Applicant does not want to prosecute her application in accordance with the directions issued by the Commission.

Further, the Commissioner notes the earlier offer made by the Respondent to the Applicant to pay to her an amount that would exceed any amount that could be awarded to her by the Commission in the event the Commission determined that the Applicant had been unfairly dismissed. The Commissioner wishes to hear from the Applicant as to why the application should not be dismissed on the basis that it is vexatious.

Section 587 of the Act permits the Commission to dismiss an application if the application is vexatious. The Commissioner’s preliminary view is that the application is vexatious on account of the failure of the Applicant to accept an offer of settlement which would exceed that which could be awarded by the Commission. The Commissioner also notes that reinstatement is not sought, nor would it, it seems, be appropriate.

The Applicant is directed to provide a numbered-paragraphed, detailed witness statement by no later than 4:00pm Monday, 16 August 2021 setting out why the Commission should not dismiss her application on the basis that it is not vexatious. Any failure to provide the paragraphed, detailed witness statement will result in the Commissioner making a decision on the information presently before the Commission. No extensions will be granted.”

[18] On 16 August 2021, Ms Kljaic sent the following email to chambers:

“Good morning.

You have asked me to provide with witnesses. I don’t have any witnesses. It was just me and Miss White. The employees that could be a witness still work for her and I will not be asking them to be witness as it is not fair, they will be dismissed if they did.”

[19] In reply, the following email was sent to the parties:

“Dear Parties

Reference is made to the above matter and the Applicant’s email below, received today.

Chambers kindly reminds the parties that all correspondence directed to the Commission in respect of this matter must copy-in all parties to this matter.

On Friday, 13 August 2021, the Commissioner made the following Direction:

“The Applicant is directed to provide a numbered-paragraphed, detailed witness statement by no later than 4:00pm Monday, 16 August 2021 setting out why the Commission should not dismiss her application on the basis that it is not vexatious. Any failure to provide the paragraphed, detailed witness statement will result in the Commissioner making a decision on the information presently before the Commission. No extensions will be granted.”

The witness statement is to be from the Applicant (Ms Kljaic), outlining her evidence setting out why the Commission should not dismiss her application on the basis that it is not vexatious. The above Direction does not refer to any witness statement from any other person.”

[20] On 17 August 2021, the Respondent foreshadowed it was contemplating making a s.399A application. The following was sent to the Respondent, copying in Ms Kljaic:

“Dear Ms Tarman

Reference is made to the above matter and your correspondence below.

The Commission has not received any correspondence from the Applicant since the Commission’s email to the parties on Monday, 16 August 2021 at 11:26AM (AEST).

The Commissioner is considering her decision in this matter on the information presently before the Commission, as outlined in the Commission’s email to the parties on Friday, 13 August 2021 at 2:32PM (AEST), in which s.587 of the Fair Work Act 2009 was brought to the Applicant’s attention. The Applicant was first made aware of s.587 in the Commission’s email on 26 July 2021.

The Respondent is at liberty to make any application it wishes to make in regard to this matter by 4:00pm (AEST) Wednesday, 18 August 2021.”

[21] On 18 August 2021, Ms Kljaic telephoned my chambers. My Associate returned her call and answered questions raised by her. I have reviewed my Associate’s file note of the call.

[22] On 18 August 2021, the Respondent made a s.399A application, requesting the Commission dismiss the application pursuant to s.399A(1)(a) and (b) of the Act.

[23] The following correspondence was sent to the parties on 18 August 2021:

“Dear Parties

Reference is made to the below email and the attached s.399A application made by the Respondent this afternoon.

The Commissioner directs that the Applicant, Ms Kljaic, provide her response to the attached application in writing by no later than 10:00am (AEST) Friday, 20 August 2021.

The Commissioner advises that after 10:00am (AEST) Friday, 20 August 2021, the decision regarding the s.399A and s.587 considerations will be reserved.”

[24] No response was received.

Relevant legislation

[25] Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A states:

“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

Note 1: For another 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.”

[26] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[27] Pursuant to s.600 of the Act, the Commission also has the power to determine a matter before it in the absence of a person who has been required to attend before it.

Respondent’s submissions

[28] The Respondent made the following submissions relevant to s.399A(1)(a) - Failure to attend a hearing:

(a) It is an expectation that applicants are accountable and must comply with the directions that come from making an application under s.394 of the Act;

(b) The Act reinforces this under s.399A by giving powers to the FWC to exercise its discretion where applicants do not comply with the FWC's directions can have their application dismissed;

(c) The FWC may exercise its discretion to not dismiss an application, where there is reasonable explanation provided by the applicant for the failure to attend: Aragon v Aegis Safety Pty Ltd T/A Techinspect at [76];

(d) Ms Kljaic bears the obligation to provide a reasonable explanation to the FWC for her non-attendance;

(e) Ms Kljaic has not only not provided a reasonable explanation, but she has also ignored the direction from the FWC and not responded at all with respect to her failure not to attend the non-compliance hearing on 13 August 2021;

(f) The Respondent submits that Ms Kljaic has failed to discharge her accountabilities in complying with the FWC's directions to attend a hearing. Accordingly, the FWC should dismiss the application.

[29] The Respondent made the following submissions relevant to s.399A(1)(b) - Failure to comply with a direction or order by the FWC relating to the application:

(a) Since the initial directions issued on 29 April 2021, Ms Kljaic has failed to comply with the FWC's directions on at least six separate occasions and as a result has delayed the proceedings by nearly four weeks;

(b) Ms Kljaic’s inability to produce materials and be ready for the hearing represents a continuing non-compliance and has caused an unnecessary delay.

(c) It is the Respondent's view that Ms Kljaic has been afforded an acceptable period of time and an extensive opportunity to file her materials;

(d) Ms Kljaic is aware of her obligations and the consequences with respect to non-compliance with the directions of the FWC. The FWC has communicated on at least four separate occasions, that the application could be dismissed for her failure to comply with the FWC's directions;

(e) Ms Kljaic has at no time provided any reasonable explanation for not complying with the FWC's directions. Further, even if Ms Kljaic was to provide a reasonable explanation in response to the Respondent's submissions, this does not reasonably explain why Ms Kljaic did not provide an explanation at an earlier date when directed to do so by the FWC;

(f) The Respondent submits the FWC should dismiss the application.

[30] Relevant to the s.587 considerations, the Respondent stated it had offered to Ms Kljaic the amount of $2,730.77, being an amount $1,000 greater than the maximum Ms Kljaic could hope to achieve having regard to s.392 of the Act. On that basis, the Respondent submitted that Ms Kljaic’s decision not to resolve the application represents a vexatious pursuit of her application.

Consideration

[31] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.¹ Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.²

[32] The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[33] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

• is fair and just;

• is quick, informal and avoids unnecessary technicalities;

• is open and transparent; and

• takes into account equity, good conscience and the substantial merits of the case.

[34] Ms Kljaic has been provided with an extraordinary amount of time and opportunity to put her material before the Commission, and to allow the Respondent to know the full case it is required to answer at hearing. It is unacceptable for Ms Kljaic to expect to give a substantial amount of oral evidence at the hearing. The purpose of the Commission issuing directions to parties is to ensure almost all of the in-chief evidence is before the Commission and the other party well in advance of the hearing. It would be inefficient to conduct a hearing with parties learning the bulk of the other side’s evidence at the hearing. It would also be unfair.

[35] During the first non-compliance hearing of 30 July 2021, Ms Kljaic made an undertaking to the Commission to put her material on by 4 August 2021. The brief email she sent made it abundantly clear she wished to adduce further oral evidence at the hearing, but without committing her evidence to writing. In correspondence I informed her that was unacceptable.

[36] Ms Kljaic has repeatedly failed to comply with the Commission’s directions and failed to attend the second non-compliance hearing on 13 August 2021. I am satisfied that she unreasonably failed to do the things reasonably required of her to advance the application to hearing.

[37] As communicated to Ms Kljaic, she does not suffer any disadvantage. She has simply informed the Commission at various times that she is busy. A template witness statement from the Commission’s website was provided by my Associate for her assistance.

[38] Section 381 of the Act, in guiding how the Commission deals with unfair dismissal applications, states the following:

“SECTION 381 OJBECT OF THIS PART

381(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

381(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”

[39] It is clear that s.381 of the Act requires a fair go to be afforded to both Ms Kljaic and the Respondent in these proceedings. I am satisfied that Ms Kljaic has been afforded a fair go. I am satisfied she has unreasonably failed to meet the directions required of her and to participate in the hearing of 13 August 2021. There was no basis for her refusal to attend the non-compliance hearing at 1:30pm, noting she had a medical appointment at 2:20pm.

[40] Ms Kljaic’s continued failure to meet her obligations in this application is resulting in the Respondent not being afforded a fair go. It is entitled to have some certainty as to how this matter might be progressed, particularly with the large number of witnesses I expect it would call to give evidence. The witnesses called for the Respondent should not be faced with dealing with a substantive amount of Ms Kljaic’s in-chief oral evidence, hearing it for the first time during the hearing of this application. I have no confidence in Ms Kljaic preparing her material, as directed, even if a further extension was sought and granted.

Conclusion

[41] In circumstances where Ms Kljaic has provided no plausible excuse for non-compliance with the directions, has been directed to various resources, was informed of the importance of complying with directions, does not suffer from any disadvantage, and failed to attend the second non-compliance hearing on 13 August 2021, I have concluded, on balance, that Ms Kljaic has both:

(a) unreasonably failed to attend a hearing held by the Commission in relation to the application ; and

(b) unreasonably failed to comply with a direction of this Commission relating to the application.

[42] I am therefore persuaded I should exercise my discretion under s.399A and dismiss Ms Kljaic’s application.

[43] An Order PR733099 giving effect to this decision will be issued today.

[44] In light of my decision, it is not necessary that I make a decision relevant to the s.587 consideration.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

2 Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

Srebrenka Kljaic v Eagers Automotive Pty Ltd

[2021] FWC 5083

24 AUGUST 2021

DECISION

Respondent’s submissions

Consideration