Christina Yim v The Salvation Army (VIC)
[2024] FWC 3412
•6 DECEMBER 2024
| [2024] FWC 3412 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christina Yim
v
The Salvation Army (VIC)
(U2024/10762)
| DEPUTY PRESIDENT BELL | MELBOURNE, 6 DECEMBER 2024 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case – unexplained failure to attend conciliation conference or file material by due dates – no reasonable prospect of success – application dismissed.
On 11 September 2024, Ms Christina Yim made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by The Salvation Army (VIC) (Respondent) on 21 August 2024. The Respondent agrees the Applicant was dismissed on 21 August 2024 but denies the dismissal was unfair.
The matter was initially allocated to a staff member of the Commission for conciliation. Records of the Commission show that a conciliation conference was listed for Thursday, 10 October 2024 but which was adjourned at Ms Yim’s request. The conciliation listed on the rescheduled date of 13 November 2024 did not proceed because Ms Yim did not participate.
On 13 November 2024, Commission staff wrote to Ms Yim asking (among other matters) why she did not attend. No response has been received. That letter, sent to the email address nominated by Ms Yim with her unfair dismissal application, stated (among other matters):
“I refer to the above case, which did not proceed to conciliation. As I have not heard from the Applicant in relation to their nonavailability for the conciliation of the above case on 11:15 AM on Wednesday, 13 November 2024, I have now referred the application for conference/hearing before a Commission Member.”
The matter was subsequently allocated to me. Upon the matter being allocated to me, I issued directions on 20 November 2024 for the conduct of the proceeding. A Notice of Listing for a hearing on 13 January 2024 was also issued on the same date.
My directions specifically included a note about the failed conciliation conference and then stated:
“If Ms Yim no longer wants to continue with her unfair dismissal application, Deputy President Bell requests that she send an email to [email protected] telling him she wants to discontinue her application, in which case the Directions below will not need to be complied with and the file will be closed.
Otherwise, failure to comply with these Directions or to attend any conference or hearing may result in the Commission proceeding to dismiss or determine the matter in your absence and based on the material before the Commission.”
The cover email to the parties enclosing the directions contained a further warning about non-compliance with the directions, in light of the history of the matter. That note relevantly stated:
“Pursuant to the Directions Ms Yim is required to file her material first, with a due date of Wednesday 4 December 2024. Out of fairness to Ms Yim as a self-represented party, the Deputy President draws to her attention the possible consequences for non-compliance with the Directions, as noted in the Directions. This includes that the matter might be dismissed without being heard: see s.587 of the Fair Work Act 2009, or dismissed for failure to comply with a direction, upon an application by the employer: see s.399A of the Fair Work Act 2009.
The Directions also note that if Ms Yim no longer wants to continue with her application, she is to send an email to [email protected] telling the Deputy President she wants to discontinue her application, in which case the Directions will not need to be complied with, the hearing on 13 January 2025 will be vacated and the file will be closed.”
As indicated by the above email, Ms Yim was directed to file and serve her evidence by 4pm, Wednesday 4 December 2024. Ms Yim did not do so and nor did she provide any explanation why.
On 5 December 2024, my Chambers sent a further email to Ms Yim’s nominated email addressed, which relevantly stated:
“Dear Ms Yim
Are you still intending to continue your application?
I refer to your unfair dismissal application, which is presently listed before Deputy President Bell on Monday 13 January 2025, in person at the Fair Work Commission in Melbourne.
Directions were issued on 20 November 2024 in regard to your application (copy attached). The Deputy President notes that you have not filed any of your material – witness statements and submissions – that you were required to file by 4pm, Wednesday 4 December 2024. Nor has the Deputy President received any explanation for the failure to provide that material.
In the Directions email sent to you on 20 November 2024 (below), as well as in the Directions themselves, it was drawn to your attention the possible consequences for non-compliance with the Directions. This includes that the matter might be dismissed without being heard: see s.587 of the Fair Work Act 2009, or dismissed for failure to comply with a direction, upon an application by the employer: see s.399A of the Fair Work Act 2009.
If you no longer intend to continue with your application, please tell us by email, in which case the Deputy President will note your matter has been discontinued and he will close the file.
If you do intend to continue with your application, you must file your material in support of it.
In the absence of any material from you, the Deputy President’s provisional view is that your application will have no reasonable prospects of success and is liable to be dismissed on that basis under s. 587 of the Fair Work Act.
You must file any material upon which you rely in support of your unfair dismissal application, by no later than midday tomorrow, Friday 6 December 2024 or provide a proper explanation as to why you cannot do so. If you do not do so, the Deputy President is likely to dismiss your application with no further notice to you. Any Decision dismissing your application will be published on the Commission’s website.
Regards”
Since the brief contact on 22 October 2024 in which Ms Yim requested that the original conciliation conference be rescheduled, Ms Yim has not communicated with the Commission at all.
It is clear that Ms Yim does not intend to prosecute her application.
Putting aside the applicant’s unexplained failure to comply with the directions (as extended), it is now very clear that she is not taking steps to prosecute her claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the applicant in the correspondence from chambers on 20 November 2024 and the directions of the same date. I am also satisfied that, in the absence of any evidence for her claim, the claim has no reasonable prospects of success.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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.”
I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that Ms Yim has not shown a willingness to prosecute her case. She failed to attend a conciliation conference, failed to comply with directions of the Commission (as extended) and has not provided an explanation for her failure to comply with directions, including in circumstances where it was expressly foreshadowed that her application would be dismissed if that information was not provided.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
<PR782158>
[1] PR782159
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