Sylvia Reilly v Blairlogie Living and Learning Inc

[2016] FWC 1002

[2016] FWC 1002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sylvia Reilly
v
Blairlogie Living & Learning Inc.
(U2015/12587)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Ms Sylvia Reilly alleged that the termination of her employment by Blairlogie Living and Learning Inc. was unfair.

[2] On 3 November 2015, Ms Reilly filed a form F1 alleging that the termination of her employment was unfair. On the same day Ms Reilly was sent an email advising her that she needed to file a form F2, a copy of that form was attached.

[3] Ms Reilly then filed a form F2 on 30 November 2015. In that correspondence she advised that the dismissal took effect on 14 October 2015.

[4] On 2 December 2015, Ms Reilly was sent correspondence advising her that her application had been lodged outside of the 21 days provided for in the Act and advising her that if she wished to continue, the question of whether she was granted an extension of time would need to be determined. She was advised of the criteria the Fair Work Commission would have regard to, in deciding whether to grant an extension of time.

[5] On 9 December 2015, Blairlogie objected to Ms Reilly’s application on the basis that it was not lodged within 21 days of the dismissal taking effect.

[6] On 17 December 2015, directions were issued to Ms Reilly to file material in support of her application for an extension of time. That material was due on 29 December 2015.

[7] Ms Reilly did not comply with the directions and various attempts were made to contact her by telephone and email on 6 January 2016.

[8] On 6 January 2016, Blairlogie filed and served an application under s.399A for Ms Reilly’s application to be dismissed, because she had not filed her material in accordance with the directions. On the same day directions were issued to Ms Reilly to file any material in opposition to the application to dismiss, by 15 January 2016.

[9] On 14 January 2016, Ms Reilly filed submissions in which she advised that she is a sole parent and she has no family living in Australia. She stated that prior to her dismissal she had been treated for a medical condition which had been exacerbated by her dismissal, resulting in an increase in the medication she is required to take. Ms Reilly said she was on WorkCover at the time of her dismissal and she has not been able to obtain other work since her dismissal. She said her financial situation was such that her phone had been disconnected. As this occurred in the lead up to Christmas, she accepted an offer to spend Christmas with a friend and her family and left Melbourne a few days before Christmas Eve, returning to Melbourne on 6 January 2016. It was then, she said, that she received the letter from the Commission about the due date for filing of material. As she did not have a working phone she was unable to contact the Commission. She said the next day she received a letter advising her that her case had been dismissed. Ms Reilly attached a medical certificate which noted that she was unable to respond to the request for paperwork by the due date as she had not been aware/contactable until 6 January 2016.

[10] On 1 February 2016, Blairlogie filed submissions in which it submitted that the failure of Ms Reilly to comply with the directions of the Commission was unreasonable. It submitted that much of the matters relied on by Ms Reilly had no bearing on her ability to prosecute her application.

[11] It submitted that the medical certificate does not include any diagnosis of the medical condition relied on by Ms Reilly. Further it in no way explained how her medical condition prevented her from complying with the Commission’s directions.

[12] Blairlogie further submitted that Ms Reilly has not provided information as to when her mobile phone was disconnected and how she was prevented from using a landline, a phone or from borrowing the telephone that she was able to use after Christmas. It contended that her failure to check her emails for five weeks was unreasonable. It submitted that Ms Reilly could have checked her email or contacted the Commission by means other than her mobile phone.

[13] Blairlogie submitted that it was not evident that Ms Reilly was absent when the directions were issued on 17 December 2016. It submitted that like an extension of time Ms Reilly should provide an explanation for the whole of the delay in lodging her material and that there was no credible explanation as to why her absence over Christmas prevented her from complying with the directions. Blairlogie accepted that Ms Reilly may have faced some hardships but that these are not exceptional.

Consideration

[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 of 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 list 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.

Conclusion

[19] I am not satisfied that Ms Reilly’s failure to comply with the directions was unreasonable. Whilst the medical certificate did not state that she was not capable of complying with the directions, there was an express reference to her illness and her requirement for support. While generally going on holidays does not provide an applicant with a reasonable explanation for her failure to comply with the directions, I accept Ms Reilly’s explanation as to why it was necessary for her to take a break to allow the child to experience a normal Christmas. I accept that in normal circumstances a failure to check one’s emails in circumstances where an application has been made would be unreasonable. However, I accept that having her phone disconnected would make communication difficult and given the time of year, I cannot be satisfied that the notice of listing arrived at Ms Reilly’s postal address prior to her departing. I do not accept the submissions from Blairlogie that Ms Reilly is required to establish exceptional circumstances. The test for an extension of time does not apply in this matter.

[20] I am therefore not satisfied that Ms Reilly’s non compliance was unreasonable and even if I had been I would not have exercised my discretion to dismiss this application given Ms Reilly’s circumstances. The matter will be listed to determine whether, in circumstances where Ms Reilly made an application for an unfair dismissal remedy within 21 days of the dismissal taking effect, albeit using the wrong form, the application was lodged out of time and if it was whether Ms Reilly should be granted an extension of time.

[21] Ms Reilly is to file and serve an outline of argument and outline of evidence in support of her application for an extension of time and/or her outline of argument as to why her application was lodged in time, by noon on 25 February 2016.

[22] Blairlogie is to file and serve an outline of argument and outline of evidence in opposition to Ms Reilly being granted an extension of time and to support its contention that Ms Reilly’s application was lodged out of time, by noon on 25 February 2016.

[23] The application will be listed for a telephone hearing/conference at 9am on 26 February 2016.

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   PR956665

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