Daisy Flesser v Lumigold Pty Ltd

[2024] FWC 1804

[2024] FWC 1804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daisy Flesser
v

Lumigold Pty Ltd

(U2024/5428)

DEPUTY PRESIDENT DOBSON BRISBANE, 10 JULY 2024

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application by Ms Daisy Flesser (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Lumigold Pty Ltd (the Respondent) filed on 14 May 2024.

1. On 21 June 2024, I issued directions for the filing of material. The directions included both the date and time for the conference and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 5 July 2024.

1. The matter was listed for a conference, by telephone, at 3:00pm on 1 July 2024. Ms Daisy Flesser did not appear at the conference. Ms Jackie Feng appeared on behalf of the Respondent.

1. At the commencement of the conference, my Associate contacted the Applicant on the contact number provided by the Applicant on her Form F2. A voicemail message was left requiring the Applicant to answer the next call. Three further attempts to contact the Applicant on the telephone number were made and an SMS message was issued from my Chambers. An email was also issued to the Applicant’s email address instructing her to join the conference by no later than 3:20pm. As at the date of this decision, Ms Flesser has not responded to those messages.

1. On 1 July 2024, the following email was sent from my Chambers to Ms Flesser:

“Dear Ms Flesser

I refer to the above matter.

A conference was listed before the Deputy President at 3:00pm (AEST) today and you have failed to attend. The contact number provided by you on your Form F2 Application was contacted several times and a text message was issued reminding you of your obligation to attend. An email was also sent to you.

The Deputy President is considering whether your unfair dismissal application should be dismissed in accordance with s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.

If you wish to proceed with your application, you must make contact with Chambers by way of email by no later than 4:00pm (AEST) on 3 July 2024 and provide the reasons for your failure to attend. Any reason must be supported by sufficient evidence and must be copied to the Respondent. You are reminded that your material is also due to be filed by no later than 4:00pm (AEST) on 5 July 2024.

In the absence of a response from you, your application may be dismissed without further notice to you.

Alternatively, if you do not wish to proceed with your application, you can reply by email that you wish to discontinue the application. You may alternatively submit a Form F50 – Notice of Discontinuance.

Finally, should the Respondent file according to s 399A of the Act, the Deputy President will be required to consider whether the matter be dismissed.

…”

1. No response was received from Ms Flesser.

1. On 4 July 2024, the following email was sent from my Chambers to Ms Flesser:

“Dear Ms Flesser

It is noted that we did not receive a response to our correspondence. It is the Deputy President’s current view that your unfair dismissal application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your unfair dismissal claim.

If you wish to proceed with your unfair dismissal application, you must make contact with us by 4:00pm (AEST/QLD) today. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email…”

…

“I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission’s website.

Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application.”

1. Again, no response from Ms Flesser was received by my Chambers at the time of writing this decision. The Applicant also failed to file the material as directed.

1. Section 587 of the Act 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.

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. I am satisfied that the Applicant unreasonably failed to comply with the requirement to attend the previously listed conference and to file her materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:

   (A)The Applicant has repeatedly failed to offer any reasonable explanation for her failure to comply with the directions or attend the listed conferences.

   (B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress her non-compliance but has failed to do so.

2. My discretion to dismiss the Applicants’ unfair dismissal application under s.587 has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to provide a reasonable explanation for her failure to comply with my directions, failure to attend a conference or failure to file materials. Further, Ms Flesser has failed to respond to communications from my Chambers and failed to provide an explanation for her non-compliance. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application.

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.587.

1. Pursuant to s.587, the Applicant’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

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