Russo v Marist Youth Care Limited [2015] FWC 865 (5 February 2015) [2015] FWC 865 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Teresa Russo v Marist Youth Care Limited T/A MYC Ltd (U2014/12387) DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 FEBRUARY 2015 Application for relief from unfair dismissal. [1] Ms Teresa Russo alleged that her dismissal by Marist Youth Care Limited T/A MYC Ltd was unfair. Marist Youth alleged that Ms Russo was not dismissed as she resigned. [2] On 3 December 2014, directions were issued to Ms Russo to file material in support of her application by no later than 22 December 2014. The directions advised the parties that they are required to comply with the directions. [3] Ms Russo was represented in this matter by Regency Lawyers. [4] Ms Russo did not comply with these directions and no application for an extension of time was made before the compliance date. [5] The matter was listed for a non compliance hearing on 24 December 2014. Regency Lawyers sought an adjournment of the non compliance hearing due to their office closure but when that request was not granted they provided the Commission with a contact number to enable a lawyer to participate in the non compliance hearing. [6] Neither Ms Russo nor her lawyer attended the non compliance hearing. Ms Russo’s lawyer contacted the Commission at 12.20pm that day advising that she had not been contacted for the non compliance hearing. By email dated 16 January 2014 Ms Russo’s lawyer advised that the Commission had also not contacted Ms Russo for the non compliance hearing. [7] New directions were issued requiring Ms Russo to file her material by close of business on 14 January 2015. On 13 January 2015 Ms Russo’s lawyer wrote to the Commission seeking an extension of time until 21 January 2015 to file material. The lawyer advised that her office had only reopened on 12 January 2015 and that two days was insufficient time to prepare the material. Marist Youth opposed the granting of an extension of time. [8] The matter was listed for a non compliance hearing on 19 January 2015 and new directions were issued requiring Ms Russo to file and serve her material by close of business on 19 January 2015. [9] Ms Russo lodged her witness statement at 5.13pm on 19 January 2015 but did not attach her submissions which were forwarded the next day. [10] In addition Ms Russo did not comply with an order to produce which required her to produce documents by 16 January 2015. Those documents were not produced until 19 January 2015. [11] On 19 January 2015, Marist Youth applied to have the application dismissed under s.399A(1)(a) and (b) of the Fair Work Act 2009 . Ms Russo opposed the application. [12] The parties agreed that this application could be determined on the papers. There are no factual disputes between the parties. Consideration [13] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been non compliance with directions of the Commission. 1 [14] 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 [15] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited. 3 [16] In summary that decision said: ● the starting point of any consideration in 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. [17] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter. [18] I am not prepared to find that Ms Russo failed to attend the non compliance hearing. I accept that she and her lawyer made themselves available to be contacted. Why that did not occur is not in evidence before me. [19] However it is clear that Ms Russo did not comply with directions of the Commission. Neither she or her representative sought an extension of time to lodge her material before the first compliance date. Despite this, Ms Russo was given an extension to time and still she did not comply with the directions. The comment by her lawyer that she had only two days to lodge the material after her office reopened is disingenuous. Ms Russo’s lawyers were aware on 24 December 2014 that new directions were issued. Ms Russo had had more than two days to prepare her material. She had from 3 December 2014. [20] The Commission does not go into recess over the Christmas/New Year period. Given that Ms Russo was non compliant with directions of the Commission she and her lawyers should have made arrangements, despite the fact that the lawyer’s offices were closed, to comply with the subsequent directions of the Commission. [21] I accept that the failure to comply with the directions to file by close of business on 19 January 2015 was inadvertent. [22] Ms Russo also without explanation failed to comply with an order to produce. Conclusion [23] Ms Russo and her lawyers have taken a very cavalier attitude to their obligations to comply with directions . Fortunately Ms Russo’s non compliance did not delay the hearing of this matter. [24] Ms Russo has now filed material and the matter can go to conference/hearing. While late filing does not excuse her failure to comply, I am unable to conclude that Ms Russo was unwilling to have matter ready for trial in a timely fashion. [25] The decision to dismiss an application is discretionary. I am not prepared in this case to exercise my discretion to dismiss the matter. 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 . Printed by authority of the Commonwealth Government Printer <Price code A, PR560757>