Chanel Ella-May Prentice v Edyn Lee Paro

[2024] FWC 749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Chanel Ella-May Prentice
v

Edyn Lee Paro

(C2023/8000)

COMMISSIONER HUNT

BRISBANE, 22 MARCH 2024

Application to deal with contraventions involving dismissal

On 15 December 2023, Ms Chanel Prentice made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Edyn Lee Paro (the Respondent) in contravention of the general protection provisions of the Act.

In her application, Ms Prentice nominated 6 November 2023 as the date of her dismissal. Accordingly, the application appeared to have been made outside of the 21-day time limit prescribed by the Act. However, in the Form F8A Response to the application, the Respondent nominated the dismissal date as 27 November 2023.

The matter was allocated to me on 16 January 2024, and in correspondence issued to the parties by my chambers, I requested that the parties advise the date of termination. Ms Prentice did not reply. The Respondent advised that Ms Prentice’s employment was terminated on 8 December 2023. Accordingly, I advised the parties that my preliminary view was that the application was made within the 21-day statutory timeframe and listed the matter for a telephone conference on 1 February 2024.

Ms Prentice did not attend the telephone conference and was unable to be contacted on the telephone number listed on her application. By email sent by my chambers on 1 February 2024, Ms Prentice was directed to contact my chambers. On 27 February 2024, having received no contact from Ms Prentice, I requested that she advise by 4:00pm that day whether she wished to progress with the matter. Ms Prentice did not respond to this request.

After unsuccessfully attempting to call Ms Prentice on 13 March 2024, my chambers sent an email directing that she respond by 15 March 2024, advising if she wished to progress the application. The parties were advised that my preliminary view was that if Ms Prentice did not respond, her application would be dismissed for want of prosecution.

Ms Prentice has not made any contact with my chambers.

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.”

Consideration

The words, “without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Fair Work Commission (the Commission) to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Ms Prentice has showed no willingness to progress her application and has not responded to the many attempts made by the Commission to contact her. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Chanel Ella-May Prentice filed a claim against Edyn Lee Paro, alleging wrongful dismissal under the Fair Work Act 2009. Ms. Prentice initially claimed she was dismissed on 6 November 2023, but the respondent, Paro, asserted the dismissal date was 27 November 2023. Commissioner Hunt was tasked with determining the dismissal date and whether Ms. Prentice's claim was within the 21-day statutory timeframe. Ms. Prentice did not provide a clear dismissal date and failed to attend the scheduled telephone conference or respond to multiple attempts by the Commission to contact her regarding the matter.

The primary legal issue before Commissioner Hunt was whether Ms. Prentice's application was within the statutory time limit for dismissal claims and if the application should proceed. The Commissioner also needed to determine whether the application could be dismissed for lack of prosecution due to Ms. Prentice's non-cooperation and lack of responsiveness to the Commission's communications. The Commissioner had to consider whether the application was frivolous or vexatious, and whether it had reasonable prospects of success. Additionally, the application of section 587 of the Act, which outlines the circumstances under which the Commission may dismiss an application, was relevant to the decision.

Commissioner Hunt reviewed the provisions of section 587 of the Fair Work Act and noted that the Commission's jurisdiction to dismiss an application was not restricted to the specific circumstances listed in s.587(1). Despite the protection under s.587(2) that prevents dismissal of an application under sections 365 or 773 on the grounds of being frivolous or having no reasonable prospects of success, the Commissioner found that Ms. Prentice's failure to engage with the process and respond to multiple attempts to contact her warranted dismissal under s.587(3)(a) for want of prosecution. Given Ms. Prentice's inaction, the Commissioner concluded that her application would be dismissed.

In conclusion, Commissioner Hunt dismissed Ms. Prentice's application for want of prosecution, as she had failed to respond to the Commission's multiple attempts to contact her and did not provide any clarification regarding the dismissal date. The dismissal was made under s.587(3)(a) of the Fair Work Act, reflecting the Commission's authority to dismiss applications on its own initiative when the applicant has not demonstrated a willingness to proceed with the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established