Taila Oosterhof v Mainfreight Distribution Pty Ltd
[2022] FWC 116
•24 JANUARY 2022
| [2022] FWC 116 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Taila Oosterhof
v
Mainfreight Distribution Pty Ltd
(U2021/8573)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 24 JANUARY 2022 |
Application for an unfair dismissal remedy.
On 23 September 2021, Ms Talia Oosterhof (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment with Mainfreight Distribution Pty Ltd (the Respondent) was unfair.
The matter was initially listed in the Fair Work Commission (the Commission) for a staff conciliation telephone conference at 10:15 am on 5 November 2021. Ahead of the conciliation, the Applicant’s Representative confirmed the Applicant’s appearance and provided the Commission with an updated telephone contact number. At the time of the conciliation conference the conciliator was unable to contact the Applicant. The Applicant’s representative also advised the Commission that they were unable to make contact with the Applicant prior to the commencement of the conference. As the Applicant failed to appear, despite several attempts made by the Commission and her representative, the conciliation did not proceed.
At 11:00 am on 5 November 2021 an email was sent by the Commission to the parties confirming that the matter did not proceed due to the Applicant’s unavailability. The email further outlined that should the parties wish for the matter to proceed via a further conciliation, they were required to make a request within 2 working days (by 7 November 2021) and provide advice in relation to their availability. The email stated that should a response not be received within the required timeframe; the matter would be referred directly for arbitration before a member of the Commission.
At 5:01 pm on 16 November 2021, a further email was sent to the Applicant by the Commission seeking advice as to whether she wished to proceed with a further conference. If a response was not received by 12:00 pm (AEDT) on 19 November 2021, it was advised that the matter would be referred to arbitration before a member of the Commission.
At 1:49 pm on 22 November 2021, the Applicant was contacted by the Commission by telephone. She advised that she intended to proceed with the matter however, she was unable to attend the initial conference as she was working. The Commission requested that a response to the Commission’s correspondence be provided regarding a second conciliation conference along with dates she was unavailable in December for relisting. Accordingly, the Applicant sent an email to the Commission at 1:56 pm on 22 November 2021 requesting that a further conciliation conference be scheduled.
On 22 November 2021 at 5:14 pm the Commission emailed the parties seeking their availability between 6 December to 15 December 2021 (inclusive) for a further conference. A response was to be provided by close of business 24 November 2021. The Respondent replied by email at 5:23 pm on 24 November 2021 outlining its availability. The Applicant did not respond.
The matter was listed for a further conciliation conference at 9:15 am on 10 December 2021 before a staff member of the Commission. A Notice of Listing was issued to the parties at 9:05 am on 25 November 2021 confirming these details.
The Applicant failed to attend the second conciliation conference on 10 December 2021 despite several attempts made by the Commission and her Representative to contact her. On 10 December 2021 at 1:50 pm the Applicant advised the Commission via email that she was unaware of the scheduled conciliation and would be willing to participate in a further conference. The request was refused, and the matter was subsequently allocated to my Chambers on 10 December 2021 for determination.
Following allocation of the matter, directions were issued to the parties by my chambers on 10 December 2021 setting down a timetable for the filing of material by both parties. The directions required the Applicant to file and serve on the Respondent by close of business Friday 31 December 2021 any submissions, witness statements and other material on which she sought to rely on in relation to the merits of her application. The Respondent was then required to file its material in reply by the close of business on Friday 21 January 2022. The matter was listed for hearing on 21 February 2021 to deal with the merits of the application.
The directions to the parties relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[3] The submissions must include all relevant facts, dates and incidents to support all claims made.
[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[5] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Applicant failed to file her material on or by close of business 31 December 2021 in accordance with the Directions issued. As a consequence, the matter was subsequently listed for a non-compliance hearing before me at 10:00 am on 7 January 2022. The conference was attended by the Applicant, Ms Shona Taylor National People Health and Safety Manager for the Respondent and Ms Libby Pallot of Russel Kennedy as Representative for the Respondent. The Applicant’s Representative filed a From F54 ceasing to act on her behalf on 6 January 2022.
At the non-compliance hearing, an application pursuant to s.399A of the Act was made by the Respondent requesting the application be dismissed by reason of the failure of the Applicant to attend two conferences listed by the Commission as well as her failure to comply with a direction or order of the Commission regarding the filing of material.
Prior to considering the s.399A application made, I determined to provide the Applicant with an extension of time within which to file her material. Relevantly, amended directions were issued by my chambers on 7 January 2022 directing the Applicant to file submissions and any other material on which she sought to rely on or by the close of business Wednesday 12 January 2022. The Respondent was provided with an opportunity to file its material in reply by the close of business on Wednesday 9 February 2021.
In providing the Applicant with an extension of time within which to file her material, I stated to her during the 7 January 2021 hearing that if she failed to file her material in accordance with the revised directions, I would proceed to deal with the Respondent’s s.399A application with the risk that her application for an unfair dismissal remedy would be dismissed.
The Applicant sent an email to my Chambers at 4:08 pm on 12 January 2022 attaching incomplete material, that being a brief Outline of Argument, and requesting a small extension of time to file further documents. No witness statement/s or other documents were filed. An email was then sent by my chambers in response to the Applicant at 10:39 am on 13 January 2022 advising that a further extension of time would not be provided and that she was invited to provide submissions as to why her application should not be dismissed pursuant to s.399A of the Act and/or whether she sought to be heard in relation to the s.399A application by close of business 17 January 2022.
The Applicant sent an email to my Associate on 17 January 2021 in the following terms;
“………….
As per our discussion I am writing to request that my case be heard and not be dismissed. I am my only witness so I won’t be filing any witness applications. Also as discussed I am currently in New South Wales, I am heading home today but won’t reach home until approximately 8pm tonight. I have already submitted to you my outline of argument I am not requesting an extension but a little bit of good will on your behalf to allow me to upload other documents as I do not have them on hand tonight as soon as I get home. If I am unable to submit my other paperwork later tonight then I would still like to go ahead and have my case heard.
Please call me as soon as convenient on 04XXXXX XXX to advise the next steps to be taken.”
In response to the Applicant’s submissions filed on 17 January 2022, the Respondent was provided with an opportunity to file submission in reply, and did so, by close of business 19 January 2022.
Consideration
Section 399A of the Act provides as follows:
“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
(c) failed to discontinue the application after a settlement agreement has been concluded.
…
(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.”
In determining the Respondent’s s.399A application there were no factual matters in dispute and the Applicant did not seek to be formally heard. I consequently decided to determine the matter on the papers.
The Applicant failed to attend two conciliation conferences listed for 5 November and 10 December 2021. On allocation of the matter to my chambers for arbitration, she then failed to file her material in accordance with directions issued by my chambers on 10 December 2021. At a subsequent non-compliance hearing on 7 January 2022 at which the Respondent made a s.399A application, it was stated to the Applicant in granting her an extension of time, that a further failure to comply with the revised directions for filing of her material would lead to my considering the Respondent’s s.399A application which may result in the dismissal of her application.
While the Applicant filed some material on 12 January 2021, she failed to file any evidence by the close of business on that day by way of witness statements or other documents on which she sought to rely. This was contrary to the specific directions set out above at [10].
The Applicant has demonstrated a persistent pattern of non-compliance with directions of the Commission. I am satisfied that the Applicant’s non-compliance with the Commission’s directions to attend two conferences and file her materials by required dates was unreasonable in circumstances where she bore the onus of pressing her application and where her inaction and omissions have caused the Respondent avoidable cost and inconvenience.
In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR737686>
0
0
0