Amy Kate Hayes-Brinsley v Peregrine Corporation Pty Ltd

[2023] FWC 1668

[2023] FWC 1668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Kate Hayes-Brinsley
v

Peregrine Corporation Pty Ltd

(U2023/4020)

COMMISSIONER PLATT ADELAIDE, 10 JULY 2023

Application to deal with unfair dismissal application - dismissed pursuant to s.587 of the Fair Work Act 2009.

1. On 9 May 2023, Ms Amy Kate Hayes-Brinsley (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Peregrine Corporation Pty Ltd (the Respondent).

1. A Conciliation was scheduled for 14 June 2023 but did not proceed as the Applicant did not attend.

1. The matter was then referred to me for Arbitration.

1. On 27 June 2023 in response to the service of a Form F53 by the Respondent’s representative, the Applicant replied “Lol yeah they know I can’t win. I’m not bothering.” The Applicant was invited to file a Form F50 by the Respondent but did not do so.

1. A Directions Conference was conducted on 29 June 2023. The Applicant did not attend the Conference. The Respondent was represented by Mr Hyde (of counsel) with permission being granted pursuant to s.596.

1. Directions were issued for the filing of material. Paragraph [1] of the Directions advised ‘A Directions hearing was conducted in this matter today. The Applicant failed to attend. If the Applicant fails to comply with these Directions (in particular the requirement to submit her materials by 7 July 2023) her application may be dismissed (for want of prosecution) without further notice.’

1. The Applicant’s material was due at 4pm on Friday 7 July 2023. A reminder was sent to the Applicant at 5.05pm. As at 2.00pm on Monday 10 July 2023 no material or communications from the Application had been received.

1. s.587 of the Act provides:

“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.”

1. In McLeod v Kulgera Trading Company Pty Ltd[1] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.

1. In this matter, the Applicant has demonstrated an unwillingness to prosecute her case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant appears to have had no intention of following through.

1. I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[2] warrant the dismissal of this application.

ORDER

1. The application lodged by Ms Amy Hayes-Brinsley pursuant to s.394 of the Act on 9 May 2023 is dismissed pursuant to s.587 of the Act.

COMMISSIONER

[1][2014] FWC 2112.

[2] Ibid [10].

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