DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carolyn Waters
v
Uniting Vic Tas Pty Ltd
(U2020/14978)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 9 FEBRUARY 2021

Application for unfair dismissal remedy – non-compliance with directions – application dismissed.

[1] This Decision is issued further to the Order I issued on 8 February 2021 dismissing Ms Carolyn Waters’ (the applicant) application for relief from unfair dismissal contained in PR726759.

[2] On 18 November 2020, the Fair Work Commission (the Commission) received an application from the applicant for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with Uniting Vic Tas Pty Ltd.

[3] On December 2020, I issued Directions to the parties. Those Directions required the applicant to file with the Commission and serve on the respondent their submissions and supporting materials in relation to the matter by no later than noon on Wednesday, 27 January 2021.

[4] On 7 January 2021, I granted an extension of time request from the respondent to file and serve their submissions and supporting materials in relation to the matter. I issued Amended Directions to the parties on 8 January 2021 which required the applicant to file with the Commission and serve on the respondent their submissions and supporting materials in relation to the matter by no later than noon on Wednesday, 3 February 2021.

[5] The applicant did not file her submissions and supporting materials on 3 February 2021 as required by the Amended Directions. A non-compliance email was sent to the applicant notifying that she was in breach of the Amended Directions and that the application was at risk of being dismissed. I directed the applicant to provide by no later than noon on Friday, 5 February 2021 a submission explaining her failure to comply with the Amended Directions.

[6] The applicant did not file her submissions and supporting materials on 5 February 2020 or provide a response as to her failure to comply with the Amended Directions.

[7] A further non-compliance email was sent to the applicant notifying that she was again in breach of the Amended Directions and that the application was at risk of being dismissed. I issued Further Amended Directions requiring the applicant to file with the Commission and serve on the respondent their submissions and supporting materials in relation to the matter by no later than noon on Monday, 8 February 2021.

[8] To date, no response or submissions have been received from the applicant.

[9] 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

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.”

[10] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[11] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. I add that if the employer had applied as required by s.399A(2) I would have also decided to dismiss the application for breach of directions pursuant to s.399A(1)(b).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Carolyn Waters applied for an unfair dismissal remedy against Uniting Vic Tas Pty Ltd in the Fair Work Commission. The applicant, a former employee of the respondent, sought relief on the basis that her dismissal was unfair. The respondent contested the application, arguing that it was non-compliant with procedural directions issued by the Commission.

The central issue before the Commission was whether the applicant's failure to comply with specific procedural directions warranted the dismissal of her application. The Commission considered whether the non-compliance was material and whether it had prejudiced the respondent's ability to defend the application. Additionally, the Commission examined whether the applicant had any mitigating factors that could justify the non-compliance.

After evaluating the evidence and submissions, the Commission found that the applicant's non-compliance with the directions was both material and prejudicial to the respondent. The Commission held that the applicant had failed to adhere to critical procedural requirements, which significantly impacted the respondent's capacity to prepare a defence. Furthermore, the Commission noted that there were no compelling mitigating circumstances to excuse the non-compliance. Consequently, the application was dismissed. The Commission emphasised the importance of adhering to procedural directions to ensure the fair and efficient administration of justice.

Carolyn Waters v Uniting Vic Tas Pty Ltd

DECISION

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