Amber Wilson v BHP Minerals Pty Ltd

[2023] FWC 1732

[2023] FWC 1732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Amber Wilson
v

BHP Minerals Pty Ltd

(C2023/2989)

DEPUTY PRESIDENT O’KEEFFE PERTH, 17 JULY 2023

General Protections breach involving dismissal - application dismissed pursuant to s.587 of the Act.

1. On 24 May 2023, Ms Amber Wilson (the Applicant) made an application to the Fair Work Commission (FWC) under s365 of the Fair Work Act 2009 (the Act). The Applicant submitted that her employment had been terminated by BHP Minerals Pty Ltd (the Respondent) in breach of the General Protections provisions of the Act.

1. The Respondent in its F8A response raised a jurisdictional objection to the FWC dealing with the matter, on the basis that the Applicant had resigned.

1. On 26 June 2023 I issued directions for a hearing to determine the jurisdictional objection.

1. The Directions required the Respondent to file and serve its materials by 4.00pm AWST on 3 July 2023.  The Respondent complied.

1. The Applicant was required to file her materials by 4.00pm AWST on 10 July 2023 but failed to do so.  Instead, at 3.59pm AWST on 10 July 2023, the Applicant emailed my chambers outlining the difficulties she was having in pursuing the matter.  In that email, she further stated:

“I will continue to update my statement and supporting information for submission at the earliest, however I appreciate I have not been able to comply with the direction given, in providing this by 4.00pm AWST on Monday 10th July, and as such accept the consequences of this may be that my case is dismissed.”

1. I then issued an amended direction on 12 July 2023, allowing the Applicant until 4.00pm AWST on 13 July 2023 to file her materials.  In my correspondence, I indicated that if the Applicant failed to comply, I would consider using the powers conferred on me by s587 of the Act to dismiss her application. 

1. The Applicant failed to comply with the amended Directions by the required time and did not make contact with chambers requesting a further extension or explaining her failure to comply.

1. On 14 July 2023 the Respondent lodged a Form F1 with chambers noting that the Applicant had again failed to comply with directions and requesting that I dismiss her application.  I note that the Applicant was sent a copy of the F1 by the Respondent.

1. By Monday 17 July 2023 there had been no further correspondence from the Applicant, meaning the last item of correspondence received was on 10 July 2023.

1. In its Form F1 application, the Respondent drew my attention to the findings of the FWC regarding the powers conferred by s587 of the Act. Specifically, the finding that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications[1] and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal[2].

1. In this instance, I am persuaded to exercise my powers under s587 to dismiss the application.  The Applicant has failed to comply with directions, set out in correspondence that she is facing difficulties in pursuing her application and accepts that her failure to do so may result in her application being dismissed.  An order dismissing the application will issue.

DEPUTY PRESIDENT

[1] Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12].

[2] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8].

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