Chloe Barker v Pelo By Lago Pty Ltd

[2023] FWC 712

[2023] FWC 712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Chloe Barker
v

Pelo By Lago Pty Ltd

(C2023/595)

DEPUTY PRESIDENT BOYCE SYDNEY, 24 MARCH 2023

Application to deal with contraventions involving dismissal

Background

1. On 5 February 2023, Ms Chloe Barker (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Ms Barker commenced employment with Pelo By Lago Pty Ltd (Respondent) on 28 March 2022 and claims to have been dismissed on 1 February 2023.

1. The Respondent asserts that the Applicant was not dismissed. Instead, after being placed on a performance management plan on 1 February 2023, she left the Respondent and never returned.

1. The matter was allocated to my Chambers on 21 February 2022. A notice of listing and directions were issued to the parties on 22 February 2023, with the matter listed for Hearing to deal with the no-dismissal jurisdictional objection on 5 April 2023.

1. Direction [3] of the Directions issued 22 February 2023 read as follows:

“[3] By 4.00pm AEDT on Wednesday, 22 March 2023, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection raised.”

1. Chambers received no correspondence from the Applicant in compliance with Direction [3].

1. On Thursday, 23 March, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further directions for the Applicant to:

“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 6:00pm AEDT Today, 23 March 2022.”

1. Chambers received the following correspondence from the Applicant’s representative at 1.58pm later that day:

“Hi [Associate] 

Apologies for the delay on this we will send through the content later today . 

Regards 
Nicola”

1. Chambers received no further correspondence from the Applicant in compliance with Direction [3] or the Show Cause Email.

Legislative Provisions

1. 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.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia 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.”i

Consideration

1. As the Applicant has made no attempt to comply with the Directions or the Show Cause Email, and has failed to explain her non-compliance, I have decided to dismiss her Application.

1. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-compliance with directions is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or 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.

1. 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

Printed by authority of the Commonwealth Government Printer

<PR760575>