Brianne Morrell v Marda Operations Pty Ltd
[2024] FWC 1403
•29 MAY 2024
| [2024] FWC 1403 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brianne Morrell
v
Marda Operations Pty Ltd
(U2024/3641)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 29 MAY 2024 |
Application for an unfair dismissal remedy – extension of time – dismissal s 587
On 2 April 2024, the Commission received an application from Ms Brianne Morrell (the Applicant) asserting she had been unfairly dismissed by Marda Operations Pty Ltd (the Respondent).
The application was referred to my Chambers on 15 May 2024, and on that same date directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 1600hrs, Monday, 20 May 2024.
The Applicant did not comply with the First Directions and no explanation was provided for the non-compliance. Chambers issued an email to the parties on Tuesday, 21 May 2024, alerting the Applicant to her non-compliance with the First Directions. The Applicant was directed to write to Chambers explaining her non-compliance and to seek an extension of time in which to provide her response (accompanied with reasons) by 1200hrs, Wednesday, 22 May 2024 (Second Directions)
In addition to emailing the Applicant about her non-compliance, on Wednesday, 22 May 2024, Chambers called the Applicant at 1241hrs. The Applicant was informed that a non-compliance email had been sent the day prior and that she had until 1200hrs on the Wednesday to provide a response. The Applicant informed Chambers that she did not see the ‘deadline’ in the email and noted that she was seeking legal advice and that the Respondent had not paid her workers’ compensation. The Applicant was informed that she could provide an explanation in writing and send it to Chambers of the Deputy President to consider, copying the other party to her correspondence.
No response was forthcoming from the Applicant, therefore on Thursday, 23 May 2024, at 0846hrs, directions were issued regarding the potential dismissal of the Applicant’s unfair dismissal application for non-compliance with the First and Second Directions (Third Directions). The Third Directions set out that the Commission has powers under s 587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an application where there is non-compliance with directions. The email provided the hearing date and timeframe regarding the filing and serving of materials in respect of the potential dismissal of the Applicant’s application. The Applicant was required to file with Chambers and serve on the Respondent her submissions and materials by 1600hrs on Friday, 24 May 2024.
A Notice of Listing regarding the hearing to determine whether the unfair dismissal application should be dismissed, was issued at 0855hrs on Thursday, 23 May 2024.
At 0907hrs on Thursday, 23 May 2024, the Applicant responded to the Third Directions in the following terms, noting to the effect:
a) she had a lot going on at this point of time and apologised for the delay in response;
b) she had been unable to resolve the dispute with the Respondent due to having not yet received any of her workers’ compensation;
c) she had sought ‘legal aid’ for this matter and explained the advice received; and
d) at this time she was yet to have updated her legal representative regarding the next steps in relation to the unfair dismissal hearing.
On Friday, 24 May 2024, Chambers emailed the parties noting the Applicant’s response to the Third Directions, and further outlined that the Applicant is facing the potential dismissal of her application and to comply with the directions issued. The parties were reminded that the matter was listed for hearing on Wednesday, 29 May 2024, to consider whether the unfair dismissal application should be dismissed.
On Monday, 27 May 2024, Chambers called the Applicant at 1621hrs and left the Applicant a voicemail further alerting her to the Third Directions. At 1539hrs on that same day, Chambers emailed the parties, directing that the Applicant had until 0900hrs on Wednesday, 29 May 2024, to provide materials in compliance with the Third Directions.
The Third Directions directed the parties that the matter would be determined on the papers (in the absence of the parties), unless either party requested a hearing by 1600hrs on Tuesday, 28 May 2024. No request was made.
In short, whilst the Applicant made contact with Chambers on Thursday, 23 May 2024, in response to the Third Directions, she has on all other occasions failed to respond to the directions. Furthermore, the correspondence from the Applicant on Thursday, 23 May 2024, exhibited no sense of urgency to address the First, Second and Third Directions, the Applicant noting that she was yet to update her legal representative and that ‘she had a lot going on’.
The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have her/his application for relief orders under beneficial legislation, heard and determined according to law’.[3]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has essentially done nothing to prosecute her case notwithstanding the persistent encouragement and follow-up by Chambers. The Commission’s resources have been diverted to assist the Applicant to undertake the simple task of complying with the First Directions and thereafter the subsequent directions that issued. The Applicant’s non-compliance with the directions and lack of response to the potential dismissal of her application, have led me to this conclusion.
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, her application is dismissed pursuant to s 587(1)(c).
An Order[4] to this effect is issued concurrently.
DEPUTY PRESIDENT
Matter determined on the papers.
Printed by authority of the Commonwealth Government Printer
<PR775445>
[1] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[3] Ibid.
[4] PR775446.
Printed by authority of the Commonwealth Government Printer
<PR775445>
0
0
0