Stephanie Drew v Just Fine Food

[2016] FWC 2351

[2016] FWC 2351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephanie Drew
v
Just Fine Food
(U2015/14189)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 APRIL 2016

Application for relief from unfair dismissal.

[1] On 12 November 2015, Ms Stephanie Drew made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Drew’s employment had been terminated by Just Fine Food on 22 October 2015.

[2] The matter was the subject of conciliation on 14 December 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing on 5 February 2016.

[3] Ms Drew was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 22 January 2016.

[4] At 12.55 pm on 22 January 2016, Just Fine Food emailed the Commission seeking the dismissal of Ms Drew’s application pursuant to s399A of the Act on the grounds of Ms Drew’s failure to comply with directions.

[5] At 3.28 pm on 22 January 2016, Just Fine Food filed a Form 1 Application seeking dismissal of the application pursuant to s399A of the Act.

[6] On 22 January 2016, Ms Drew was sent correspondence informing her of Just Fine Food’s s399A application. Ms Drew was directed to file submissions and other documentary material in respect of Just Fine Food’s application by close of business, on 1 February 2016. Ms Drew was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 29 January 2016, Ms Drew filed submissions in response to Just Fine Food’s s399A application.

[8] On 2 February 2016, Commissioner Wilson notified parties:

“Dear Parties,

I refer to the above matter, which has now been allocated to Commissioner Wilson.

Commissioner Wilson has considered the s.399A application to dismiss made by the Respondent, noting the response of the Applicant on 29 January 2016.

The Commissioner is not disposed to grant the s.399A application at this time.

In the circumstances, and consistent with the Fair Work Commission Fair Hearings Practice Note (attached), the Commissioner considers it appropriate to proceed with the Extension of Time and Jurisdiction conference/hearing as listing at Not Before 2 PM on Friday, 5 February 2016.”

[9] On 22 February 2016, Commissioner Wilson issued a decision dismissing the jurisdictional objection in this matter.

[10] On 8 March 2016, directions were issued and the matter was listed for hearing on 4 and 5 May 2016.

[11] Ms Drew was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 29 March 2016.

[12] At 5.29 pm on 29 March 2016, Just Fine Food again emailed the Commission seeking the dismissal of Ms Drew’s application pursuant to s399A of the Act on the grounds of Ms Drew’s failure to comply with directions.

[13] At 2.27 am on 30 March 2016, Ms Drew emailed the Commission and Just Fine Food her submissions.

Conclusion

[14] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[15] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[16] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[17] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[18] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[19] I am not satisfied that Ms Drew has unreasonably failed to comply with a direction of the Commission as she has filed the material she wishes to rely on at the hearing of her matter.

[20] In these circumstances, I will dismiss Just Fine Food’s section 399A application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]

 3   PR 956665

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