1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Natalie Raschilla
v
Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane
Engineered Lifting Technology
(U2016/5307)
DEPUTY PRESIDENT BINET PERTH, 24 FEBRUARY 2017
Application for relief from unfair dismissal –application to dismiss – Applicant’s failure to
discontinue application – Applicant’s failure to comply with directions.
[1] On 14 March 2016, Ms Natalie Raschilla (Ms Raschilla) filed an application
(Application) with the Fair Work Commission (FWC) alleging she was unfairly dismissed
by Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting
Technology (Supercrane).
[2] On 16 April 2016, Supercrane lodged a Form F3 Employer Response to the
Application which included a jurisdictional objection to the Application (Jurisdictional
Objection) on the grounds that the Applicant resigned and was not dismissed in accordance
with section 386 of the Fair Work Act 2009 (Cth) (FW Act).
[3] As Ms Raschilla’s Application was made outside of the 21 day time limit prescribed
by the FW Act, Ms Raschilla was required to seek an extension of time within which to make
her Application. On 26 April 2016, Commissioner Bisset issued an order for an extension of
time for lodgment of the Application (Order PR579459; Decision [2016] FWC 2588,
PR579418). The Application was subsequently referred for further programming.
[4] On 13 June 2016, the parties participated in a telephone conciliation before a FWC
conciliator but were unable to resolve the issues in dispute.
[5] The Application was subsequently allocated to me and listed for a conciliation
conference on 5 August 2016 (Conference). At the Conference and subsequently Ms
Raschilla was self-represented and Mr Justin Lilleyman (Mr Lilleyman) from the Chamber
of Commerce and Industry WA Inc. represented Supercrane pursuant to section 596(4)(b)(ii)
of the FW Act.
[6] At the Conference the parties agreed to settle the Application pursuant to agreed terms
of settlement which both parties signed at the conference (Settlement Agreement). One of
the terms of settlement was that Ms Raschilla would authorise the filing of a signed Form F50
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DECISION
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Notice of Discontinuance when the balance of the terms of settlement had been complied with
by both parties.
[7] On 12 August 2016, Mr Lilleyman confirmed by email to the FWC that Supercrane
had complied with its obligations in the Settlement Agreement but that Ms Raschilla as at 12
August 2016 had not complied with her obligations. The email, which was subsequently
forwarded by my Chambers to Ms Raschilla, advised that Ms Raschilla had until Saturday 13
August 2016 to comply with the Settlement Agreement.
[8] On 15 August 2016, Mr Lilleyman advised my Chambers by email, copying in Ms
Raschilla, that Ms Raschilla had still failed to meet clauses 3(a), (b) and (e) of the Settlement
Agreement and therefore asked that the Application proceed to a hearing.
[9] On 18 August 2016, Supercrane filed with my Chambers and served on Ms Raschilla
the following documents:
(a) a Form F1 application pursuant to s.399A of the FW Act for the Application to be
dismissed (Dismissal Application);
(b) a Form F6 application pursuant to s.400A of the FW Act (Costs Application);
and
(c) Annexures 1 and 2 in relation to both the Form F1 and Form F6 applications,
which included the signed Settlement Agreement and the Statement of Service
provided to Ms Raschilla in accordance with the Settlement Agreement.
[10] A Determinative Conference was listed for Monday 3 October 2016 for the
determination of Supercrane’s Dismissal Application and Costs Application. Due to the
unavailability of witnesses the Determinative Conference was subsequently relisted to Friday
30 September 2016 and the parties were advised accordingly.
[11] In accordance with directions issued to the parties on 24 August 2016 (Directions), on
7 September 2016, Supercrane filed its submissions, witness statements and copies of its
authorities.
[12] The Directions directed Ms Raschilla to file her submissions, witness statements for
any witness to be called, copies of her authorities and any evidence upon which she relied, by
close of business, Wednesday 21 September 2016. No submissions or evidence were filed by
Ms Raschilla on or before this date.
[13] On 22 September 2016, Mr Lilleyman emailed my Chambers requesting that the
Application be dismissed pursuant to section 399A(1)(b) of the FW Act in light of Ms
Raschilla’s failure to comply with the Directions in respect of the filing of her materials.
[14] My Associate subsequently called Ms Raschilla regarding her non-compliance with
Directions and during that telephone conversation Ms Raschilla advised that she hadn’t seen
any emails and would her file her submissions that night.
[15] On 24 September 2016, Ms Raschilla emailed my Chambers as follows.
“Dear Deputy President Binet
[2016] FWC 7104
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I would like to thank you, for advising that we will be proceeding with the Hearing on
the 30/9/2016 @ 10.00am
Thank you
Kind Regards
Natalie Raschilla”
[16] On 28 September 2016, having still not received submissions or witness statements
from Ms Raschilla, my Chambers attempted to contact Ms Raschilla by telephone to request
the filing of these materials but to no avail. A voicemail message was left on Ms Raschilla’s
voicemail.
[17] In the afternoon of 28 September 2016, Ms Raschilla filed with Chambers, copying in
Supercrane and its representatives, her signed statement of events in relation to the
circumstances surrounding her dismissal (Statement of Events), annexures to the Statement
of Events, including email exchanges between her and Supercrane with respect to her
employment and subsequent dismissal, Centrelink Employment Separation Certificate and
correspondence regarding her injury compensation claim, and Australian Tax office
documents in relation to her superannuation.
[18] The documents which Ms Raschilla filed did not include any submissions in relation
to the Dismissal Application or the Costs Application. With the exception of email
correspondence in relation to the provision of payslips by Supercrane in the discharged of its
obligations under the Settlement Agreement, the documents filed related to Ms Raschilla’s
unfair dismissal claim and not the Dismissal Application or Costs Applications.
[19] The Determinative Conference proceeded as listed on 30 September 2016.
Applicable legislation
[20] Section 399A of the FW 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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see
section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party
to the matter to incur costs (see section 400A).
[2017] FWC 1117
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(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.”
[21] Ms Raschilla was accompanied by a support person at the Conference. After lengthy
negotiations and various opportunities to privately discuss the settlement terms with her
support person she agreed to the terms of settlement. These were captured in the Settlement
Agreement. Ms Rashcilla signed the Settlement Agreement and this was witnessed by her
support person.
[22] At the Determinative Conference, Ms Raschilla conceded that she had failed to
comply with the terms of the Settlement Agreement which included discontinuing the
Application.1 She also conceded that Supercrane had complied with its obligation under the
Settlement Agreement to the extent it was possible given they were awaiting further
clarification from her lawyers.2
[23] The Directions directed Ms Raschilla to file her submissions, witness statements for
any witness to be called, copies of her authorities and any evidence upon which she relied, by
close of business Wednesday 21 September 2016. No submissions or evidence were filed by
Ms Raschilla on or before this date.
[24] At the Determinative Conference, Ms Raschilla said:
“I have no excuse as to failure to comply, other than representing myself and
understanding the whole thing.”3
[25] When questioned whether there was anything about the Directions which were unclear
Ms Raschilla conceded that it was merely an oversight on her part to not read the dates on the
Directions.4
[26] Ms Raschilla failed to explain why after having been contacted by my Associate after
the due date for filing and having undertaken to file the required materials the same day, it
was not until a further four days later and a further telephone call from my Associate, that Ms
Raschilla eventually did so. These materials did not contain any submissions in relation to the
Dismissal Application or the Costs Application.
[27] I am satisfied that Ms Raschilla has unreasonably failed to discontinue the Application
after the Settlement Agreement had been concluded and has failed to comply with Directions.
[28] On the Application of Supercrane and in the exercise of my discretion under section
399A of the FW Act I have therefore decided to dismiss the Application. An Order to this
effect will be issued with this Decision.
[29] Section 400A of the FW Act provides as follows:
“400A Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under
this Part (the first party) for costs incurred by the other party to the matter if the
FWC is satisfied that the first party caused those costs to be incurred because of
[2016] FWC 7104
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an unreasonable act or omission of the first party in connection with the conduct
or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the
matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.”
[30] The power to award costs under this provision is discretionary and is only exercisable
where a party to an unfair dismissal application causes the other party to incur costs because
of unreasonable act or omission.5
[31] The phrase ‘unreasonable acts or omissions’ was considered in Goffet v Recruitment
National Pty Ltd.6 In that matter, the Full Bench characterised an unreasonable act or
omission as one which was either deliberate or reckless.
[32] On 26 August 2016, Mr Lilleyman wrote to Ms Raschilla advising her as follows.
His client would incur significant additional further costs as a result of her failing
to comply with the Settlement Agreement and his client being forced to make the
Dismissal Application and the Costs Application.
If, on or before 5pm on 31 August 2016, she complied with the Settlement
Agreement and discontinued the Application as agreed in the Settlement
Agreement, his client would discontinue the Costs Application.
If she failed to do so his client reserved the right to seek costs on an indemnity
basis.
[33] Nevertheless, Ms Raschilla deliberately and recklessly failed to comply with her
obligations pursuant to the Settlement Agreement or discontinue the Application and as a
consequence, Supercrane were forced to proceed with its Dismissal Application and Costs
Application.
[34] Ms Raschilla was given one further chance to rectify her non-compliance with the
Settlement Agreement. At the end of the Determinative Conference the parties were advised
that if the matter was resolved and the Application discontinued before close of business on
Monday 30 October 2016 a Decision would not be issued in respect of this matter.
[35] Supercrane submits that their costs from the date of the Conference to the date of the
Determinative Conference are $7,410. These costs are limited to professional services.7
[36] Ms Raschilla chose to make no submissions in relation to the Costs Application.8
[37] Section 402 of the FW Act provides as follows:
“402 Applications for costs orders
An application for an order for costs under section 611 in relation
to a matter arising under this Part, or for costs under section 400A
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or 401, must be made within 14 days after:
(a) the FWC determines the matter; or
(b) the matter is discontinued.”
[38] In accordance with section 402 of the FW Act, Supercrane may make an application
for an order for costs under section 400A of the FW Act within 14 days of the date of this
decision.
DEPUTY PRESIDENT
Appearances:
N Raschilla, Applicant
J Lilleyman of Chamber of Commerce and Industry WA Inc. for the Respondent
Hearing details:
2016.
Perth:
September 30.
Final written submissions:
Applicant, 28 September 2016
Respondent, 7 September 2016
Printed by authority of the Commonwealth Government Printer
Price code C, PR590518
1 Transcript PN28.
2 Transcript PN74 & 78.
3 Transcript PN11.
4 Transcript PN86.
5 [2015] FWC 7678.
6 [2009] AIRCFB 626.
7 Transcript PN92.
8Transcript PN100.
THE FAIR WORK ORK COMMISSION 1 THE
