Courtney Lynch v BMSF Pty Ltd
[2024] FWC 3147
•15 NOVEMBER 2024
| [2024] FWC 3147 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Courtney Lynch
v
BMSF Pty Ltd
(U2024/10437)
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 NOVEMBER 2024 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case – failure to file material by due date – no reasonable prospect of success – application dismissed.
On 5 September 2024, Ms Courtney Lynch (applicant) 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 BMSF Pty Ltd (respondent) on 5 September 2024.
In its Form F3 Employer response, the respondent raised a jurisdictional objection that the applicant was not dismissed. It contends that the applicant resigned her employment with the respondent on 1 October 2024.
On 23 October 2024, I issued directions to the parties. Among other matters, those directions required Ms Lynch to file and serve her evidence and submissions upon which she relied by 6 November 2024.
Ms Lynch did not file any material by the due date or at all.
On 7 November 2024, my chambers wrote to Ms Lynch reminding her that her material was due and asking for it to be filed as soon as possible. That afternoon, Ms Lynch wrote an email simply stating “I would like to speak with someone about this matter”. The respondent was not copied to her email.
On 8 November 2024, my chambers wrote to Ms Lynch telling her that communications with chambers about queries she had should be in writing, copying the respondent. In relation to Ms Lynch’s non-compliance with her requirement to file and serve her material, the email stated:
“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 by no later than 9am AEDT, Monday 11 November 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.”
Ms Lynch has not filed any material nor provided any explanation as to why she cannot do so. There has been no communication from Ms Lynch since her brief email on 7 November 2024.
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, both on the basis of a want of prosecution and for having no reasonable prospects of success. As to the former, it is very clear that Ms Lynch does not intend to take any steps in prosecuting her claim. As to the latter, in the absence of any evidence from her, her claim has no reasonable prospects of success. In dismissing her application, 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
[1] PR781250
Printed by authority of the Commonwealth Government Printer
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