Sue Charles v Deniliquin Local Aboriginal Land Council

[2018] FWC 4290

[2018] FWC 4290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sue Charles
v
Deniliquin Local Aboriginal Land Council
(U2018/4199)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 20 JULY 2018

Application for an unfair dismissal remedy – applicant failed to comply with directions or otherwise communicate with the Commission – Fair Work Act 2009 (Cth) s.587 – application dismissed.

[1] On 20 April 2018, Ms Sue Charles (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of her employment by Deniliquin Local Aboriginal Land Council (the respondent).

[2] On 7 June 2018, I was allocated this application after the applicant refused to participate in conciliation before a Commission staff conciliator.

[3] On 13 June 2018, I listed this application for hearing in Albury, and issued directions for the filing of written material. I directed the applicant to file an outline of submissions, witness statements and other documentary material on which she wished to rely in support of her application by 4:00 pm on 4 July 2018. My chambers did not receive the applicant’s material or any other correspondence from her by that deadline.

[4] On 5 July 2018, my chambers telephoned the applicant and left a voice mail message, asking her to advise whether she still wished to proceed with her application. Later that day, the applicant returned this call. She said that she did still want to proceed with her application, but had not met the deadline because she had had some deaths in her family recently and therefore had needed to participate in sorry business. She also said that she was planning to seek legal advice about her application.

[5] My chambers asked the applicant to provide a written request for an extension of time in which to file her material, which she did shortly thereafter, by email. That email said:

‘I am writing to ask for an extension to my unfair dismissal Arbitration hearing against Rayna Egan CEO Deniliquin Local Aboriginal Land Council.

Due to Sorry Business(s) and upcoming funerals and my personal emotional state I was not able to submit paperwork on time. I have an appointment with Lawyer Mathew Mahadey, Nicholas Rolfe & Associates Echuca next Thursday 12th July at 10:30am.

At the appointment I will be submitting all relevant paperwork on that day.

So could I please have an extension until close of business Monday [sic] 17th July.’

[6] Later that afternoon, my chambers emailed the parties to advise that I would grant the applicant an extension of time until 4:00 pm on Tuesday, 17 July 2018 to file her material, and correspondingly extend the respondent’s deadline to file its material. The email also said that I would not be granting any further extensions of time.

[7] My chambers did not receive the applicant’s material or any other correspondence from her by the extended deadline of 4:00 pm on 17 July 2018. We also did not receive any advice that Nicholas Rolfe & Associates or any other legal representative had commenced to act for the applicant.

[8] In the morning of 18 July 2018, my chambers emailed the applicant, noting that her material was overdue and asking her to advise urgently whether she still wished to proceed with her application. In the afternoon, my chambers telephoned the applicant twice, but received no answer, and left voice mail messages both times to reiterate that her material was overdue and she needed to advise urgently whether she still wished to proceed with her application. My chambers also telephoned the respondent’s legal representative later that afternoon to ask if she had heard anything from the applicant. She advised that she had not.

[9] At 4:09 pm on 18 July 2018, my chambers emailed the applicant again:

‘Senior Deputy President Hamberger is considering dismissing your unfair dismissal application, because you have not followed his direction to file submissions and evidence in support of that application.

If you still want to proceed with your application, please respond to this email by 5:00 pm tomorrow, Thursday 19 July 2018, explaining why you have not filed your submissions and evidence, and why the Senior Deputy President should not dismiss your application.

If we do not hear anything from you by then, the Senior Deputy President may dismiss your application without further notice.’

[10] I note that the telephone number which my chambers used to contact the applicant on 18 July 2018 is the same number on which the voice mail message of 5 July 2018 was left; the applicant presumably received that message, as she returned chambers’ call shortly thereafter. Similarly, the email address to which my chambers sent all the emails referred to above was the same address from which the applicant sent her extension request on 5 July 2018.

[11] As of today, 20 July 2018, my chambers have not received any further emails or telephone calls from the applicant since her extension request.

[12] The applicant has failed to comply with my direction to file material in support of her application, despite the extension I granted. She has also failed otherwise to engage with the Commission’s process. I therefore dismiss her application under s.587 of the FW Act.

SENIOR DEPUTY PRESIDENT

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