Amber Mayhaus v Jta Deliveries
[2022] FWC 2286
•16 SEPTEMBER 2022
| [2022] FWC 2286 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Amber Mayhaus
v
Jta Deliveries
(C2022/2716)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 16 SEPTEMBER 2022 |
Application pursuant to s 365 of the Fair Work Act; action to which Part 3-1 applies; regulation 1.15F of the Fair Work Regulations; application dismissed
Ms Amber Mayhaus (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by JTA Deliveries (respondent) in contravention of the general protection provisions in Part 3-1 of the Act.
For the reasons that follow, the application is dismissed.
Background
The application was received by the Commission on 29 April 2022. The application was made in accordance with the Act, in the sense that it complied with the Act and other rules for applications of its kind. However, the information provided by the applicant in the Form F8 application relevantly specifies that:
(a) the applicant resides at an address in the suburb Altamont, in the State “IL” with the postcode 62411; and
(b) the respondent is based at an address in the suburb Benton, in the State “IL” with the postcode 62812.
The addresses provided for the applicant and the respondent appear to be located in Illinois, in the United States of America. While the application was filed with the Commission by email, no other email addresses were provided for the applicant or for the respondent.
The Commission made attempts to telephone the mobile numbers provided for the applicant and the respondent on 3 May, 17 May, 20 May and 14 July 2022. The telephone numbers provided did not appear to be connected.
The information provided in the Form F8 suggests that there is an employment related dispute, and the applicant seeks to be returned to her “… driving job back at the fedex terminal working for Deters Deleveries [sic].” There is otherwise no identifying information in the Form F8.
Statutory context
Part 3-1 of the Act concerns general protections, which includes dismissal disputes lodged pursuant to s 365. Division 2 of the Act sets out how Part 3-1 applies to general protection disputes.
Section 337 of the Act provides that Part 3-1 applies only to the extent set out in ss 338 and 339. The combined effect of ss 338-339 is that applications under s 365 are, in very general terms, limited to action taken by constitutionally covered entities, trade and commerce employers and Territory employers, as well as action taken by employees of the latter two categories.
Section 34(3) of the Act provides that the regulations may extend the Act outside the limits of the exclusive economic zone and the continental shelf in relation to Australian employers and Australian-based employees. Relevantly, regulation 1.15F(4) of the Fair Work Regulations 2009 (Cth) extends the application of Part 3-1 of the Act beyond the exclusive economic zone and the continental shelf for the purposes of s 34(3) as follows:
…
(4) For subsection 34(3) of the Act, Part 3‑1 of the Act, and the rest of the Act so far as it relates to that Part, are extended to:
(a) an Australian employer; and
(b) an Australian‑based employee;
in relation to all of the area outside the outer limits of the exclusive economic zone and the continental shelf.
The terms “Australian employer” and “Australian-based employee” are defined in s 35 of the Act as follows:
(1) An Australian employer is an employer that:
(a) is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(b) is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or
(c) is the Commonwealth; or
(d) is a Commonwealth authority; or
(e) is a body corporate incorporated in a Territory; or
(f) carries on in Australia, in the exclusive economic zone or in the waters above the continental shelf an activity (whether of a commercial, governmental or other nature), and whose central management and control is in Australia; or
(g) is prescribed by the regulations.
(2) An Australian-based employee is an employee:
(a) whose primary place of work is in Australia; or
(b) who is employed by an Australian employer (whether the employee is located in Australia or elsewhere); or
(c) who is prescribed by the regulations.
The Form F8 application discloses that (a) the applicant resides in the United States of America, (b) the applicant’s primary place of work was in the United States of America, (c) the applicant was employed by a United States corporation, and (d) the respondent company is based in the United States of America. I consider that the only reasonable inference to draw from the Form F8 is that the applicant is not an Australian-based employee and the respondent is not an Australian employer. Pursuant to s 337, Part 3-1 of the Act does not apply to action taken by the respondent in respect of the applicant as described in the application. It follows that the territorial effect of the Act does not appear to extend to the dispute.
Having regard to the matters in [11] of this decision, I formed a view that I should dispense of the procedural requirement that the Commission serve a copy of the Form F8 on the respondent as soon as reasonably practicable after receiving a completed application.[1] I did so pursuant to r 6(1) of the Fair Work Commission Rules 2013 on the basis that the Commission should not be required to serve an application on a respondent’s physical address in a foreign State where there is a reasonable inference that the Act does not extend to the dispute the subject of the application. The underlying justifications for this are that service on an entity of a foreign State is an act of international significance.[2]
In the circumstances, it was necessary for the applicant to engage with the Commission to attempt to resolve this issue. At the very least, this required the applicant to affirm her position that the dispute is of a kind covered by the Act. This may lead to further inquiry or may satisfy the Commission that service is appropriate.
Procedural context
On 20 May and 24 May 2022, the Commission emailed the applicant requesting that she make contact the Commission urgently in relation to the application.
In the absence of a response from the applicant, on 1 June 2022 the Commission sent an email to the applicant explaining that the Commission is an industrial relations tribunal in Australia, and further stated:
Based on the information provided in your application, it is unclear whether you ever performed any part of your work for JTA Deliveries in Australia. The addresses provided for both yourself and the employer are in Illinois and the contact numbers are US numbers, although none appear to be functional.
The applicant did not provide a response to the Commission’s correspondence. Accordingly, on 20 June 2022 a further email was sent to the applicant identifying the territorial limits to the Commission’s jurisdiction. The email set directions for the applicant to resolve this issue.
The applicant failed to comply with the directions in the email of 20 June 2022 and, on 10 August 2022, a further email was sent to the applicant, stating as follows:
“As it presently stands, the Commission is not satisfied that your application can proceed. This is because your Form F8 application suggests that the parties are based in the United States of America and the Commission is not empowered to deal with applications under s 365 of the Fair Work Act 2009 (Cth) which are not between Australian employees and Australian-based employers.
As you have not provided any further information in response to the Commission's enquiries, your application in the Commission has not progressed.
You are invited to provide a response to this issue by 12:00pm Friday 12 August 2022. In the absence of a response your application will be dismissed for want of prosecution.”
To date, the applicant has not responded to the Commission.
Consideration
Section 587 of the Act sets out when the Commission may dismiss an application. It provides:
(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.
…
(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.
The Commission is not limited in the ways in which it may dismiss an application under s 587(1). However, in the context of an application under s 365, the Commission must not dismiss the application for a reason prohibited by s 587(2).
In general, the Commission may consider dismissing an application under s 587(1) in circumstances where there has been a failure to comply with a direction, attend a hearing, comply with the rules, or take steps to “prosecute” an application in the sense that there is a delay attributable to a failure on the part of an applicant.
Where the whole of the circumstances lead to a conclusion that there has been an inexcusable or unreasonable delay in the application, this may justify the exercise of the discretion to dismiss an application. This may involve consideration as to the blame attributable to the applicant, prejudice to and complaint of the respondent, and always involves a balancing of the Commission’s overarching considerations and the objectives of the Act.[3]
The exercise of the discretion, as is the case with all decisions to dismiss an application, must be weighed against the potential prejudice to the applicant. In the context of a s 365 dismissal dispute, exercising a power under s 587(1) of the Act to dismiss an application appears to enliven the double dipping provisions in Subdivision B of Part 6-1 of the Act. This means that an applicant may be subsequently barred from applying to the Commission for a remedy or otherwise in relation to the subject of the application dismissed pursuant to s 587(1). It is therefore a discretion which should not be exercised lightly.
After filing her application on 29 April 2022, the applicant has failed to engage with the Commission to attempt to resolve the issues discussed in this decision. In particular, the Commission’s emails to the applicant of 20 June and 10 August 2022 contained directions for the applicant’s resolution. The applicant’s failure to comply with two sets of directions from the Commission engages the ground of dismissal under s 587(1).
I consider the following matters weigh in favour of the exercise of my discretion to dismiss the application. Firstly, the Commission is required to perform its functions in a manner that is “quick.”[4] This is particularly important in general protections matters where the Commission is exercising an essentially preliminary jurisdiction.[5] Over four months have passed since the applicant’s first and only contact with the Commission, notwithstanding the Commission’s efforts to engage with the applicant. Second, the applicant has not indicated any intention to press her application in the Commission. Third, the applicant has not advised the Commission of any change in her contact details such that there is a reasonable basis to assume the applicant has not received the Commission’s correspondence. Fourth, the applicant was granted a waiver of the application fee and has not, on the Commission’s records, retained a representative in any capacity. It therefore follows that the time and cost incurred by the applicant in making this application has been minimal.
In the circumstances, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s 587(1) of the Act. I do so on the basis that the applicant has unreasonably failed to comply with directions of the Commission and because the applicant has, without explanation, failed to contact the Commission for over four months.
Conclusion and disposition
Having regard to the above matters and the conclusions reached, the application is dismissed.
DEPUTY PRESIDENT
[1] Fair Work Commission Rules 2013 r 41(2); Sch 1
[2] See, eg, Federal Court Rules 2011 r 10.43(2); Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Pt 2-7; High Court Rules 2004 r 9.07 and the associated reference to The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”)
[3] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act; Bosworth v Coles Supermarket Beechboro T/A Coles Supermarket Beechboro[2022] FWCFB 153
[4] Fair Work Act 2009 (Cth) s 577(b)
[5] Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [90]
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