Anita Di Salvo v Aldi Foods Pty Limited

[2024] FWC 1990

[2024] FWC 1990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Anita Di Salvo
v

Aldi Foods Pty Limited

(C2024/3743)

DEPUTY PRESIDENT BOYCE SYDNEY, 29 JULY 2024

Application to deal with contraventions involving dismissal – failure to comply with Directions – Application dismissed.

Overview

1. On 5 June 2024, Anita Di Salvo (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application to deal with contraventions involving dismissal (Application). The Respondent to the Application is Aldi Foods Pty Limited.

1. Directions [1] and [2] of the Directions issued on 12 July 2024 read as follows:

“[1] By 4.00pm AEST on Tuesday, 23 July 2024, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

1. The Applicant did not comply with Direction [1].

1. On 24 July 2024, at 2:20pm AEST, the following email (Show Cause Email) was sent to the Parties:

“Dear parties,

C2024/3743 - Di Salvo v Aldi Foods Pty Limited 

I refer to the matter above.

Background

On 12 July 2024, the Fair Work Commission issued Directions in this matter.

Orders [1] and [2] of those directions read as follows:

“[1] By 4.00pm AEST on Tuesday, 23 July 2024, the Applicant is to either:

(a)advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b)file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

To date, chambers has not received any materials in compliance with Order [1].

Further directions regarding show cause

In view of the foregoing, the Deputy President directs as follows:

[1]          The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 9:00am AEST tomorrow, Thursday 25 July 2024.

[2]          If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.

Regards,

[Associate]”

1. The Applicant has made no response to the Show Cause Email.

Legislative Provisions

1. Section 587 of the Act reads:

“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.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”

Consideration

1. As the Applicant has made no attempt to comply with Direction [1] and the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.

1. In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [1] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

1. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR777588>