April Van Liessum v Avk Homes
[2023] FWC 2904
•3 NOVEMBER 2023
| [2023] FWC 2904 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
April Van Liessum
v
Avk Homes
(U2023/9945)
| COMMISSIONER YILMAZ | MELBOURNE, 3 NOVEMBER 2023 |
Application for an unfair dismissal remedy – Application filed out of time - matter dismissed under s.587 at the Commission’s initiative.
On 12 October 2023, the Applicant, Ms April Van Liessum (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged she was unfairly dismissed by the Respondent who she named as ‘Avk Homes’ on 14 September 2023.
The Applicant states in her Form F2 - Unfair Dismissal Application that she commenced employment with the Respondent in May 2022 and that her dismissal took effect on 14 September 2023. In the Respondent’s response it advised the correct name for the Respondent is ‘AVK Homes PTY LTD’. The Respondent corroborated the termination date specified in the Applicant’s Form F2. However, it states that the Applicant commenced working for the Respondent on 9 May 2022.
The Application was lodged 7 days after the 21-day statutory limitation specified in s.394(2)(a) of the Act. As the matter was not properly before the Commission it was allocated to me to determine whether to grant the Applicant an Extension of Time. On 20 October 2023 my chambers sent out an email explaining that the Application appeared to be out of time and issued a notice of listing for a case management hearing for 3:30pm 23 October 2023.
At 1:57pm on 23 October 2023, my chambers emailed the parties to follow up appearances. At 2:05pm, the Applicant responded simply stating ‘I’m sorry I can’t attend’. At 2:14pm, a further email was sent from chambers to the Applicant advising that she was required to attended and if she did not attend, directions would be issued in her absence. At 2:19pm the Applicant responded to the email stating ‘Thank you for your email.’
At the commencement of the hearing, 2 attempts to call the Applicant and two voicemail messages were left advising her she was required to attend the case management hearing. The hearing proceeded, and the Applicant failed to attend. Following the hearing, I issued directions that the Applicant was to file her submissions by 5pm on Monday 30 October 2023.
The Applicant failed to file any submissions.
On 31 October 2023 my chambers sent out an email to the Applicant requesting she file her submissions immediately and that failure to do so may result in the matter being listed for a non-compliance hearing.
On 1 November 2023, my chambers issued an email to the Applicant providing her with a final opportunity to contact the Commission and she was put on notice that, should she not provide reasons as to why her matter should not be dismissed by 1pm 2 November 2023, her application would be dismissed.
After sending the email, a call was made from my chambers to the Applicant. A voicemail message was left requesting she read the email that had just been sent to her, to respond to the email as soon as possible and that if she did not wish to continue with her application, to advise the Commission as soon as possible.
At 5:11pm, the Applicant emailed chambers advising that she was unable to make the ‘phone meeting’ (I assume this was meant to refer to the case management hearing) due to her being given very short notice and that she had organised her roster so that she could attend at 1pm 2 November 2023.
At 9:37am on 2 November 2023, my chambers sent an email to the Applicant advising her that she appeared to have misread the previous email and that there was no listing that day. The email also explained in plain language that the Applicant was required to file materials on 30 October 2023, that she had failed to do so and that a decision was to be issued dismissing her Application. She was then reminded that she was granted an opportunity, until 1pm that day to provide reasons as to why the application should not be dismissed.
At 11:57am, two attempts were made to call the Applicant. On the first attempt, my chambers experienced a technical issue in making the call and on the second attempt my chambers left a voicemail. The voicemail advised the Applicant to read the email sent to her earlier that day very carefully, that there was no listing today and to respond to the email.
At 12:02pm, my chambers received a call from the Applicant. In the phone call she was again advised that she needed to provide reasons by 1pm as to why, given her failure to file and respond to the Commission, that her application should not be dismissed. She confirmed that she would do that.
Following the call, the Applicant provided two emails to chambers. The first advising she did not understand what she was required to do, the second providing her reasons.
The Applicant’s reasons were very brief. She did not address her failures to engage with the Commission. Her submissions are unclear but she expressed that she didn’t think she should have been required to contact the apprenticeship board and how not being put on a contract was illegal. While the submission is unclear it does suggest that the dispute may be around the performance improvement plan initiated by the Respondent or perhaps an inquiry regarding her contract of training. From the limited material before the Commission the Applicant appears to have found alternative employment as an apprentice. In any event the Applicant provided no reason for failure to engage with the Commission to progress her application nor any coherent reason why her application should not be dismissed.
The Legislation
Section 587 of the 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.”
Consideration and Conclusion
Having considered the failure of the Applicant to attend the case management hearing, comply with directions, respond to numerous telephone calls and emails from the Commission, and her lack of explanation around her failure to comply or discontinue, I am satisfied that the application for an extension of time to seek a remedy for an unfair dismissal should be dismissed for want of prosecution.
While the Applicant did provide reasons as to why her application should not be dismissed, her reasons are incoherent and do not address her consistent failure to effectively engage with the Commission. Her reasons merely raise a grievance the Applicant has in relation to her apprenticeship. Her reasons do not touch on her persistent failure to contact the Commission or why she appeared to consistently ignore communication from the Commission.
Additionally, I note that while she appears to feel aggrieved, she has made no attempt to follow the instructions set out in the directions. When the Applicant finally responded to the Commission, 2 days after her submissions were due, she responded in a way that made it clear she did not read the previous emails sent to her. I do not feel the Applicant took her application with a great degree of seriousness, as it can be inferred from her response that she gave the emails sent from the Commission only a cursory glance. Additionally, she made no attempts to contact the Commission to understand what had been sent to her and what she was required to do.
Further at the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
In this instance The Applicant has not attended the case management hearing, nor complied with the directions. I am also satisfied that through those attempts to contact her, the Applicant was on notice of the risk that failure to properly engage with the Commission, that her matter may be dismissed.
On this basis, the application is dismissed for failure to comply with the Commission’s directions or attend hearings. Further due to her failure to engage with the Commission her application cannot be prosecuted. Pursuant to s.587(c) of the Act, the application is dismissed for want of prosecution.
An order[1] to that effect will be issued with this decision.
COMMISSIONER
[1] PR767979.
Printed by authority of the Commonwealth Government Printer
<PR767978>
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