Bella Passlow v Green Grove Organics Pty Ltd
[2023] FWC 111
•16 JANUARY 2023
| [2023] FWC 111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bella Passlow
v
Green Grove Organics Pty Ltd
(U2022/11515)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 16 JANUARY 2023 |
Application for an unfair dismissal remedy
Background
On 3 December 2022, Ms Bella Passlow (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). In its Response, the Respondent, Green Grove Organics Pty Ltd, raised an objection that the Application has been filed out of time.
The matter was allocated to my Chambers on 21 December 2022. A notice of listing and directions were issued to the parties on 23 December 2022, with the matter listed for Hearing to deal with the out of time issue on 24 January 2023.
Direction [1] of the Directions issued 23 December 2022 reads as follows:
“[1] By 4.00pm AEDT on Thursday, 12 January 2023, 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.”
Chambers received no correspondence from the Applicant in compliance with Direction [1].
On Friday, 13 January 2023, the Applicant was sent an email (Show Cause Email), identifying that the Applicant had failed to comply with Direction [1], and issuing further a direction for the Applicant to:
“[1] 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 4:00pm AEDT Today, 13 January 2023.”
The Applicant was notified in the Show Cause Email that “If the Applicant does not comply with [the foregoing Direction] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”
By way of reply email, on 14 January 2023 the Applicant’s representative (Mr Bray) responded as follows:
“Thank you for your information. Apparently the only information received by our parties is the attached confirming this matter is set down for a telephone meeting 24/1/23 at 2.30pm by which time (2 days prior) details or attendees are to be supplied. This is all the applicant has supplied and what we are working to.”
On Monday, 16 January 2023, at 8.47am, a further email was sent from Chambers to the Applicant’s representative, as follows:
“Dear Mr Bray
In relation to your email below, the Notice of Listing (which you have attached) was sent to the Applicant along with the Directions in the same email (a copy of that email is attached as evidence).
Your email response is thus wholly unsatisfactory, and unresponsive to the Show Cause email that was sent to you on 13 January 2022.
You are provided until 12pm AEDT today [16 January 2023] to provide a comprehensive and satisfactory response as to your client’s failure to comply with Directions, or the proceedings will be dismissed without further notice to you.
To be clear, it is not acceptable for a party to simply attend upon a hearing absent proper compliance with Directions.”
Chambers received no correspondence from the Applicant in response to the foregoing request.
Legislative Provisions
“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.”
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.
[58] In determining unfair dismissal applications [the Fair Work Commission] is required to afford a fair go all round to both employers and employees. Further, [the Fair Work Commission] must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]
Consideration
As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting her case, or to explain her non-compliance with directions, I have decided to dismiss her Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute her case, and/or contact the Commission to explain her non-compliance, but has instead (including by her silence) expressed a clear disinterest in process, procedure and the prosecution of her own case. 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
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[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].
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