Ashlee O'Connor v Taylor Elc

[2023] FWC 626

[2023] FWC 626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ashlee O’Connor
v

Taylor Elc

(C2023/318)

COMMISSIONER WILSON MELBOURNE, 27 MARCH 2023

Application to deal with contraventions involving dismissal – application dismissed for want of prosecution.

1. On 22 January 2023, Ms Ashlee O’Connor filed an application with the Fair Work Commission (the Commission) for remedy for contraventions involving dismissal under s.365 of the Fair Work Act 2009 (the Act).

1. The Commission’s staff case management team attempted to call Ms O’Connor on 1 February 2023, a voicemail was left. No return call was received.

1. The matter was initially listed for a staff conciliation on 22 February 2023. Parties were sent correspondence on 2 February 2023 with the date and time of the scheduled conciliation conference.

1. The staff conciliator received an email from Ms O’Connor on 3 February 2023 asking to arrange a time to have a discussion. The staff conciliator responded the same day advising of her availability to have a discussion that afternoon. Despite attempts being made, the staff conciliator was unsuccessful in contacting Ms O’Connor in advance of the scheduled conciliation.

1. The staff conciliation could not take place due to the non-attendance of Ms O’Connor.

1. The Commission through its case management team sent correspondence to Ms O’Connor on 24 February 2023 requesting urgently that Ms O’Connor confirm her intention to proceed with the matter via reply email along with reasons for non-attendance at conciliation by close of business Monday 27 February. No response was received.

1. The matter was referred to me on 28 February 2023.

1. My Associate attempted to call Ms O’Connor on 2 March 2023. The call was not answered, and a voicemail was left.  No return call was received. I also caused correspondence to be sent to Ms O’Connor the same day directing her to provide reasons by not later than 9 March 2023 as to why the matter should not be dismissed in the absence of her attendance at the conciliation or later substantive contact.

1. Ms O’Connor responded by email on 2 March 2023 advising she did not receive the invitation for the actual date of the conciliation and was not able to have her phone with her on the day.

1. My Associate responded the same day advising the details of conciliation were provided to her on 2 February 2023 and the email from the case management team on 24 February required her response by 27 February. Ms O’Connor was asked if she has any comment about the record of communications between herself and the Commission. I also provided Ms O’Connor the opportunity to request a conciliation facilitated by me in the correspondence of 2 March 2023. No response has been received by the Commission.

1. 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.”

1. The words ‘without limiting when the FWC may dismiss an application’ in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in ss.587(1)(a), (b) and (c).

1. The Full Bench in Sayer v Melsteel Pty Ltd[1] held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

1. In Viavattene v Health Care Australia[2] the Full Bench stated at [39]:

   “There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

1. Ms O’Connor has failed to substantially engage with attempts made by the Commission to contact her since her application was filed in the Commission.  Ms O’Connor has communicated twice with the Commission since her application was filed being on 6 February and 2 March 2023 as detailed earlier in this decision. There is no reasonable explanation as to why Ms O’Connor did not respond to the other emails sent to her or return the phone calls made to her.  The emails were sent to the email address nominated on Ms O’Connor’s application and the telephone calls were made to the mobile telephone number provided on the application form.

1. Ms O’Connor has shown no willingness to prosecute her case and has provided no reasonable explanation for her failure to attend the conciliation.

1. In these circumstances, I am satisfied that Ms O’Connor has failed to prosecute her application.  In accordance with s.587 of the Act, the application is dismissed for want of prosecution.  An order giving effect to this decision will be issued alongside this decision.

COMMISSIONER

[1] [2011] FWAFB 7498 at [19].

[2] [2013] FWCFB 2532.

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