Crystal Williams v Community Lifestyles Agency
[2024] FWC 2023
•31 JULY 2024
| [2024] FWC 2023 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Crystal Williams
v
Community Lifestyles Agency
(U2024/4946)
| COMMISSIONER DURHAM | BRISBANE, 31 JULY 2024 |
Application for an unfair dismissal remedy - application dismissed under s.587.
On 1 April 2024, Ms Crystal Williams (Ms Williams/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Community Lifestyles Agency (the Respondent).
I listed the matter for a case management conference/directions hearing by telephone on 9 July 2023.
On 8 July 2024 at 11:28am, the day prior to the case management conference/directions hearing, my Associate sent the following email to the parties:
“Dear parties,
I refer to the above matter and the conference at 10:00am (Qld time) tomorrow (notice of listing attached).
Can the Applicant (Ms Williams) please confirm attendance and best contact details before close of business today.”
On the same day, the Respondent confirmed their attendance and contact details. However, no response was received from the Applicant.
On 9 July 2024 at 8:55am, the day of the case management conference/directions hearing, my Associate sent the following email to the parties:
“Dear Ms Williams,
I refer to the previous email below and the conference today at 10:00am (Qld time) (notice of listing attached).
Please confirm your attendance and best contact details by 9:30am today.”
On the same day, my Associate attempted to contact Ms Williams by telephone at 9:41am, however the call went unanswered, and a voice mail was left requesting the Applicant confirm her attendance and contact details.
On the same day, my Associate attempted to dial in Ms Williams into the case management conference/directions multiple times, however the calls went unanswered and several voice mails were left.
On 9 July 2024 at 11:28am, my Associate sent the following correspondence to Ms Williams:
“Dear Ms Williams,
Reference is made to the above matter, and to your non-attendance at the teleconference listed today at 10:00am, despite Chambers attempting to contact you on multiple occasions. I note that you were made aware of the listing by way of the notice of listing issued on 19 June 2024 (with commencement time amended on 2 July 2024) (see attached).
The matter will now proceed to hearing, which will require you to file material in support of your application by a date specified in the Notice of Listing & Directions (which will be issued today).
if you do not wish to continue with your application. Please advise Chambers by return email, or by completing the attached form (F50 notice of discontinuance).”
I subsequently issued Directions for the Applicant to file her material by 23 July 2024.
On 23 July 2024, the Applicant did not comply with my Directions and my Associate subsequently sent the following email to her on 24 July 2024:
“Dear Ms Williams,
I refer to the above matter.
As per the directions issued by Commissioner Durham on 9 July 2024 (attached), material for the Applicant was due to be filed with the Commission, and served on the Respondent, by 23 July 2024.
The Commission has not received any material from you, nor has it received a request for an extension.
Please advise by 4:00pm today, 24 July 2024, why material for the Applicant has not been filed in accordance with the Commissioner’s directions.
Failure to comply with these directions will result in the Commissioner making a decision based only on the material that has been provided. Should you choose not to respond, this may result in the matter being determined in your absence without further notice and a decision adverse to your interest may also be made.”
On 25 July 2024, as no response was received from the Applicant, my Associate attempted to contact Ms Williams at 9:00am by telephone however the call went unanswered and a voice mail was left requesting the Applicant provide a response to the email sent to her.
On 26 July 2024, as no response was received from the Applicant, a text message was sent by Commission to the Applicant noting her material is overdue and requesting she contact my Chambers as a matter of urgency.
On 29 July 2024, as no response was received from the Applicant, my Associate sent the following email to her:
“Dear Ms Williams,
Reference is made to the above matter and previous email below.
Noting the attempts to contact you via telephone and text message regarding your non-compliance of the Commissioner’s Directions (attached), as well as your non-attendance at the Case Management Conference/Directions listed on 9 July 2023, despite Chambers attempting to contact you on multiple occasions, Chambers has not received a response from you.
You have made no attempt to contact the Chambers of Commissioner Durham to explain the reasons for non-compliance regarding the Directions, nor the non-attendance regarding the listing referred to above.
The Commissioner directs you to provide your reason, in writing, for failing to comply with Directions by close of business today, 29 July 2023. If no explanation is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009. If you do not wish to continue with your application, please advise as such.”
To date, no correspondence or telephone contact has been received from Ms Williams.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Williams has failed to respond to various correspondence from Chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Williams has shown no willingness to prosecute her case and has taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the Applicant has failed to prosecute their case without examining the merits.
In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
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