Taruke Moana (Tara) Crawford v Sykes Australia

[2017] FWC 3443

[2017] FWC 3443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taruke Moana (Tara) Crawford
v
Sykes Australia
(U2017/1452)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 JULY 2017

Application for an unfair dismissal remedy.

[1] On 12 February 2017, Ms Taruke Moana (Tara) Crawford made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Crawford said her dismissal took effect on 25 January 2017.

[2] The matter was listed for conciliation on 20 March 2017, however it could not take place as Ms Crawford could not be contacted. The matter was listed for a second conciliation on 11 April 2017, however, again Ms Crawford could not be contacted. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Crawford was directed to file an outline of submissions and any witness statements and other documentary material by no later than noon on Monday 29 May 2017. On that day, Ms Crawford sent an email to the Fair Work Commission, attaching various documents, including a final written warning, termination of employment letter and action plan. The Commission then emailed Ms Crawford, seeking advice as to whether the material filed formed her submissions and evidence which she intended to rely on at hearing. Ms Crawford was also asked to confirm her attendance at the hearing as previous advice from her was that she was in New Zealand.

[4] As Ms Crawford did not respond to the Commission’s correspondence, the matter was listed for a non compliance hearing before Deputy President Gooley on 2 June 2017. Ms Crawford was unable to be contacted. Deputy President Gooley confirmed with Sykes Australia that Ms Crawford had only filed documents and no outline of submissions or witness statements, though noted that the Form F2 – Unfair Dismissal Application set out in detail why Ms Crawford says the dismissal was not fair. Sykes Australia made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Crawford had failed to comply with the direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Sykes Australia’s oral application. Correspondence was then sent to Ms Crawford, informing her of Sykes Australia’s s.399A application. Ms Crawford was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Monday 12 June 2017.

[5] I caused further correspondence to be sent to Ms Crawford on 22 June 2017, advising I was considering Sykes Australia’s s.399A application and it did not appear a response to the Commission’s correspondence of 2 June 2017 had been received. I extended the due date for her response to 28 June 2017.

[6] On 27 June 2017, Ms Crawford sent an email to the Commission, advising she is currently in New Zealand, “which is the reason for not attending the hearing.” This email was forwarded to Sykes Australia and its view was sought, which it provided on 6 July 2017. Sykes Australia submitted Ms Crawford’s reason of being in New Zealand does not excuse her lack of communication prior to, or failure to attend, the conciliations and hearing it had made itself available for. Sykes Australia said Ms Crawford’s claims are vexatious and without basis and her application should be dismissed.

[7] 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.

[8] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Crawford’s Form F2 sets out in 32 points why she considers her dismissal to be unfair. In her email of 29 May 2017, she attached a final written warning, termination of employment letter and action plan. Her email provides very limited submissions, totalling two lines. I am of the view that Ms Crawford’s lack of response on multiple occasions to the Commission’s correspondence and propensity to communicate on her own terms and in her own time is not to her credit. I acknowledge she is unrepresented but by only engaging with the Commission on her terms, she is adding to the time and resources of every other party involved in the conduct of the application she has brought.

[9] However, in very finely balanced circumstances, on review of the material filed I have determined in this case not to exercise my discretion under s.399A of the Act and I will dismiss Sykes Australia’s s.399A application. Ms Crawford will be permitted to rely on the material filed to date, being her Form F2 and email correspondence of 29 May 2017. It is fortunate that Ms Crawford put considerable detail in her Form F2 and Sykes Australia is on notice of her submissions as to why her dismissal was unfair.

[10] The matter will be programmed for hearing and Sykes Australia will be provided with Directions for the filing of its material. Ms Crawford should consider herself on notice if there are future instances of non-compliance on her part.

[11] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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