Alice Deacon v Metung Hot Springs Pty Ltd

[2023] FWC 1742

[2023] FWC 1742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Alice Deacon
v

Metung Hot Springs Pty Ltd

(C2023/3085)

COMMISSIONER YILMAZ MELBOURNE, 19 JULY 2023

Application to deal with contraventions involving dismissal - application dismissed

1. On 29 May 2023, Ms Alice Deacon (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Metung Hot Springs Pty Ltd (the Respondent) in contravention of the general protections provisions.

1. On that same day, the Applicant also lodged an application under s.394 of the Act alleging she had been unfairly dismissed. That matter was allocated to the chambers of Commissioner Bissett and following the Applicant’s failure to respond to correspondence, on 23 June 2023, Commissioner Bissett issued an order dismissing the s.394 application.[1]

1. The Applicant states in her Form F8 that she was dismissed by the Respondent on 27 April 2023, the Respondent corroborates this in its Form F8A. As the Applicant filed on 29 May 2023, her Application was filed 32 days after her dismissal and is outside the 21 day statutory limit in s.366 (1)(a). As the Application was filed out of time, the matter was allocated to my chambers to determine whether to grant the Applicant an extension of time.

1. On 6 July 2023, my chambers issued directions that the Applicant was to file her submissions by 5pm on Thursday 13 July 2023.

1. The Applicant failed to file any submissions.

1. On 14 July 2023 my chambers emailed the Applicant advising that she had failed to comply with the filing dates set out in the directions issued on 6 July 2023 and that she must file by close of business. No response was received.

1. On 17 July 2023, at 9:33am, my Chambers advised the Applicant that the matter would be listed for a non-compliance hearing scheduled for 1:00pm later that day.

1. At 9:39am, the Applicant sent through an email stating that she does not have time for this Application as she has a matter before the Supreme Court and VCAT. She requested an extension until Wednesday to file her submissions.

1. At 9:58am, my chambers advised that the non-compliance hearing would proceed as planned. The Applicant subsequently sent an email acknowledging this.

1. At 1pm, the non-compliance hearing proceeded. The Respondent was present and the Applicant could not be contacted. My chambers attempted to telephone the Applicant 2 times and 2 voicemail messages were left requesting her attendance and advising failure to attend may result in her Application being dismissed. During the hearing the Applicant sent an email advising that she was unable to attend, as she was working a shift that she had only become aware of at 12:30pm.

1. Following the non-compliance hearing my chambers sent out an email providing the Applicant until 10am 18 July 2023 to provide satisfactory reasons as to why her Application should not be dismissed. At 1:53pm, the Applicant acknowledged the email and confirmed that she would provide her reasons by first thing in the morning. No response was received from the Applicant.

1. The Respondent sent an email on 18 July 2023 requesting confirmation a decision would be issued dismissing the Application as the Applicant had failed to provide reasons. My chambers sent an email to both parties confirming a decision would be issued to that effect on the morning of 19 July 2023. My chambers did not receive any reply from the Applicant in relation to this email.

1. No correspondence has been received from the Applicant since 17 July 2023.

The Legislation

1. Section 587 of the Act provides as follows:

“587  Dismissing applications

(1)      Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)   the application is not made in accordance with this Act; or

(b)   the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)   is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3)      The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.”

Consideration and Conclusion

1. On conclusion of the non-compliance proceedings, having considered the failure of the Applicant to comply with directions, attend the non-compliance hearing and provide reasons why her Application should not be dismissed, I am satisfied that her Application should be dismissed.

1. At the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. In this instance the Applicant has not complied with the directions. My chambers have made numerous attempts to contact her and some of this communication she has acknowledged and responded to.  From this, I am also satisfied that the Applicant was put on notice of the risk that failure to contact the Commission may result in her matter being dismissed.

1. On this basis the application is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order[2] to that effect will be issued with this decision.

COMMISSIONER

[1] PR763529

[2] PR764333.

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