Amy Harris v St Mary and Philopateer Pty. Ltd

[2024] FWC 3198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Harris
v

St Mary And Philopateer Pty. Ltd.

(U2024/10388)

COMMISSIONER P RYAN

SYDNEY, 20 NOVEMBER 2024

Application for an unfair dismissal remedy – failure to attend case management directions hearing – failure to engage with the Commission – unfair dismissal application dismissed

On 4 September 2024, Ms Amy Harris (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

The Applicant alleges she was unfairly dismissed from her employment with St Mary And Philopateer Pty. Ltd (Respondent) with effect from 14 August 2024.

On 30 October 2024, the Applicant failed to attend a conciliation conference and could not be contacted. The Applicant also failed to respond to correspondence that was subsequently sent to her seeking an explanation for that non-attendance.

On 11 November 2024, the matter was allocated to my Chambers for determination. On 12 November 2024, a notice of listing was issued to the parties which:

· Listed the matter for a case management and directions hearing at 9:30am on 18 November 2024; and
· Directed the parties to confirm their attendance and contact numbers at least two days prior to the case management and directions hearing.

The Applicant did not comply with the direction to confirm her attendance. The Applicant also failed to attend the case management and directions hearing on 18 November 2024.

Following the case management and directions hearing, my Chambers sent correspondence to the Applicant seeking an explanation for her failure to attend. I directed the Applicant to provide a response by 4:00pm on 18 November 2024. The Applicant did not comply with that direction.

Legislative Provisions

Section 587 of the FW 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.”

The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

The Applicant has taken no steps to prosecute the Application. In these circumstances, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

Disposition

The Application is dismissed. An Order to that effect will issue with this decision.

For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission dismissed an unfair dismissal application by Amy Harris against St Mary And Philopateer Pty. Ltd. The Applicant, Ms Amy Harris, alleged that she was unfairly dismissed from her employment with the Respondent on 14 August 2024. The Commission, pursuant to s.394 of the Fair Work Act 2009, dismissed the Application for want of prosecution, primarily due to the Applicant's failure to attend a case management directions hearing and her non-engagement with the Commission.

The primary legal issue before the Commission was whether the Application should be dismissed for want of prosecution under s.587 of the FW Act. The Applicant's failure to attend the case management directions hearing and her lack of engagement with the Commission, including non-attendance at a conciliation conference and unresponsiveness to correspondence, were key factors in the Commission's decision. The Commission also considered the legislative provisions under s.587, which allow the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Additionally, the Commission noted that it has broad discretion to dismiss an application on its own initiative if the applicant has not taken any steps to prosecute the application.

The Commission found that the Applicant had not taken any steps to prosecute the Application and therefore dismissed it for want of prosecution. The Applicant did not attend the case management directions hearing, failed to confirm her attendance, and did not respond to correspondence seeking an explanation for her non-attendance. The Commission concluded that the Applicant's lack of engagement and non-compliance with directions warranted dismissal of the Application. The Commission also highlighted that the Applicant had not made any contact with the Commission at the time of issuing the decision. As a result, the Application was dismissed, and an Order to that effect was issued with the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established