Ashley Howatt Cikos v The Trustee For The Lod Port Melbourne Trust

[2024] FWC 665

[2024] FWC 665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ashley Howatt Cikos
v

The Trustee For The Lod Port Melbourne Trust

(U2024/754)

COMMISSIONER MIRABELLA MELBOURNE, 15 MARCH 2024

Application for an unfair dismissal remedy – application dismissed pursuant to s.587 of the Fair Work Act 2009.

1. On 23 January 2024, Ms Ashley Howatt Cikos filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act) in the Fair Work Commission (Commission).

1. Ms Howatt Cikos commenced employment with The Trustee For The Lod Port Melbourne Trust (the Lod) on 3 April 2023 and was dismissed on 17 January 2024.

1. Before this matter was allocated to me on 1 March 2024 for case management, Ms Howatt Cikos had failed to attend a conciliation conference listed on 23 February 2024 which was to be conducted by a staff member of the Commission. No explanation was provided by Ms Ashley Howatt Cikos for her failure to attend the conciliation conference.

1. I listed the matter for mention/conference via Microsoft Teams on 6 March 2024. Ms Howatt Cikos did not attend the mention/conference, despite three attempts to contact her by telephone and an email sent to her by my chambers requesting that she urgently join the mention/conference and offering assistance to do so.

1. I then caused an email to be sent to Ms Howatt Cikos on 6 March 2024 advising that a failure to attend a listing of the Commission may impact on the continuation of the matter, drawing her attention to sections 399A and 587 of the Act and requesting that she provide an explanation for her non-attendance by midday on Friday, 8 March 2024.

1. Ms Howatt Cikos did not contact my chambers by the deadline. In the afternoon of 8 March 2024, I therefore caused a further email to be sent to her requesting that an explanation for her non-attendance be provided by midday on 13 March 2024 and advising that a failure to provide an explanation risked her application being dismissed.

1. Ms Howatt Cikos did not contact chambers by the deadline. Not having any communication whatsoever from Ms Howatt Cikos, I instructed my associate to call her with the objective of urging her to provide written responses to previous emails. My associate called her on the afternoon of 13 March 2024 where she advised, among other things, that the reason she did not attend the mention/conference was because she was attending her mother’s medical treatment, and she was concerned about attending a listing with employees of the Lod present. Further, she was not sure what would happen at the mention/conference. My associate explained the purpose of the mention/conference and offered a “breakout room” to alleviate any concerns she had. My associate then asked her to send a written response to the emails from chambers detailing her reasons for her non-attendance. Ms Howatt Cikos undertook to do this prior to the following morning. At the time of writing, Ms Howatt Cikos has not engaged with the Commission since that telephone call.

1. A further email was sent to Ms Howatt Cikos on the afternoon of 14 March 2024 advising that if she does not send a written explanation for failing to attend the mention/conference to chambers by 4:00pm on 15 March 2024, her application will be dismissed. My associate then left her a voicemail advising that she was sent an email requiring a written response and that if she does not respond, the application risks being dismissed. No response has been received from Ms Howatt Cikos.

Consideration

1. Section 587 of the Act provides:

“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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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. Ms Howatt Cikos has not taken any reasonable steps to progress her application since it was filed on 23 January 2024. In the circumstances, the appropriate course is to dismiss the application for want of prosecution under s.587 of the Act. The application is dismissed.

COMMISSIONER

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