Stefanie Daniliuk v Macedon Ranges Shire Council

[2021] FWC 4864

[2021] FWC 4864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stefanie Daniliuk
v
Macedon Ranges Shire Council
(U2021/3303)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 AUGUST 2021

Application for an unfair dismissal remedy – s.399A application to dismiss.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 9 August 2021. Ms Stefanie Daniliuk (Applicant) lodged an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (Act) on 18 April 2021. In order to ready the application for a hearing, directions were issued initially by me on 15 June 2021 which required, amongst other things, the Applicant to file in the Commission and serve on the Respondent an outline of submissions, any statement(s) of evidence and any other documentary material(s) on which the Applicant intends to rely in support of her unfair dismissal remedy application. Those were due by 5.00pm on 6 July 2021.

[2] The Applicant did not file nor serve any material in accordance with the directions. On 8 July, my Associate telephoned the Applicant to inquire as to the status of her materials. My Associate was unsuccessful in contacting the Applicant. On 12 July, an email was sent to the parties directing them to attend a member assisted conciliation conference which was to be conducted by O'Neill C.

[3] Also on 12 July 2021, my Associate called the Applicant again to follow up on the outstanding submissions pursuant to the earlier directions and again her telephone was not answered. A voicemail message was left, requesting that she call my Associate. A similar telephone call with substantially the same result occurred on 13 July 2021. Later that day the Applicant called my Associate indicating to her that she was organising submissions to be prepared by her solicitors and that she thought the deadline for filing material was 26 July 2021. The Applicant indicated that she would seek an extension of time.

[4] My Associate requested that any extension request be communicated in writing and copied to the Respondent. On 16 July 2021, my Associate again telephoned the Applicant seeking an update as to the filing of materials and was unsuccessful in speaking with the Applicant. My Associate left a voicemail message. Later on 16 July, an email was received by my Associate from the Applicant requesting an extension of time to file her materials.

[5] Following some consultation with the Respondent, the Respondent indicated that it did not object to the extension of time, provided that a similar period of extension would be granted to it. That was afforded and varied directions were issued by me on 19 July 2021, extending the period by which the Applicant had to file her material from 6 July to 20 July 2021.

[6] On 20 July 2021, the Applicant failed again to comply with the directions as amended and has not since filed nor served any submissions or other material in support of her application. Calls were made by my Associate to the Applicant on 21, 22, 27 and 28 July following up on the outstanding submissions. On each occasion my Associate left a voicemail message asking the Applicant to call my Associate. In relation to each, or for that matter any of the occasions, no response has been received.

[7] On 5 August 2021, my Associate again telephoned the Applicant about the hearing which was scheduled on 9 August 2021 and left a voicemail message. No response has been received.

[8] The matter was listed for a member assisted conciliation on 5 August 2021 and attempts were made to contact the Applicant on two occasions on that day with no success and no subsequent response.

[9] An email was sent to the Applicant on 5 August 2021 indicating that she had not filed any materials in accordance with the directions, and that if she wished to discontinue her application, she could do so by reply email, by calling my Associate or by emailing a Form F50 – Notice of discontinuance. No response has been received.

[10] On 6 August 2021, the Respondent made an application pursuant to s.399A of the Act, seeking that the application be dismissed on the grounds that the Applicant had failed or unreasonably failed to attend a conference conducted by the Commission, and unreasonably failed to comply with directions related to the application.

[11] That application, together with the substantive application, was listed for hearing today. The Applicant was advised that the s.399A application was listed for today and was given a copy of the application. She had on several earlier occasions been advised that the substantive application was listed today. The Applicant has failed to file and serve any submissions in accordance with the directions and the amended directions. She has failed to attend a conference before O'Neill C for the purposes of conducting a member assisted conciliation. She has failed again today to attend a hearing which was scheduled, both in respect of her unfair dismissal remedy application and in respect of the s.399A application lodged by the Respondent.

[12] Section 399A provides the Commission with a discretion to dismiss a unfair dismissal remedy application on application by an employer, in this case the Respondent, in circumstances where the Commission is satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission, has unreasonably failed to attend a hearing held by the Commission in relation to the application, or unreasonably has failed to comply with a direction or order of the Commission, relating to the application.

[13] As the chronology that I have outlined above indicates, the Applicant has failed to comply with directions issued in relation to the application on 15 June 2021. She has failed to comply with amended directions issued on 19 July 2021. She has failed to attend a member assisted conciliation conference before O'Neill C on 5 August 2021, and she has failed to attend the hearing scheduled for today.

[14] No explanation has been given in respect of any of the failures save for the failure to comply with the first directions about which the Applicant said that she had thought that the requirement to file her submissions was due on 26 July 2021. This explanation, frankly, is one I find difficult to accept given the clear terms of the directions, and in particular the time and date for compliance appearing in bold in the directions. I am not persuaded, despite efforts to contact the Applicant, that the Applicant has any basis, let alone any reasonable basis for failing to comply with as many timeframes and failing to attend hearings and conferences as has occurred in the instant case. I consider in the case of each failure, that the failure without proper or in most cases any explanation, despite the many attempts to follow up with the Applicant was an unreasonable failure.

[15] Although the power to dismiss an application under s.399A of the Act should be exercised with caution, it seems to me this is a clear case where the power should be exercised. The Respondent has been put to the task of preparing a case without the benefit of the Applicant's material, has attended the member assisted conciliation conference and has attended the hearing today, all without the Applicant's participation.

[16] I am therefore satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission on 5 August 2021. I am satisfied that the Applicant has unreasonably failed to attend the hearing today in relation to her application. I am satisfied that the Applicant has unreasonably failed to comply with directions issued by me on 15 June 2021 and the amended directions issued by me on 19 July 2021. The discretion is enlivened. I am not aware of any discretionary consideration which might tend against the exercise of my discretion, and in the circumstances, I propose to dismiss the application.

[17] I also note that the Respondent has today applied orally for a costs order against the Applicant under s.400A of the Act. I have requested that the Respondent set out in short compass its submissions in support of the application for costs under s.400A by 5:00pm on Wednesday, 11 August 2021 and I propose to allow the Applicant to file reply submissions by 5:00pm on Monday, 16 August 2021. Directions to this effect will be issued shortly.

Order

[18] I order that the application made by the Applicant in U2021/3303 be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Minucci of counsel for the Respondent

Hearing details:

2021
Melbourne (by video link)
9 August 2021

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