Daxene Miller v Yadu Health Aboriginal Corporation
[2023] FWC 360
•14 FEBRUARY 2023
| [2023] FWC 360 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daxene Miller
v
Yadu Health Aboriginal Corporation
(U2022/11394)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 14 FEBRUARY 2023 |
Application for unfair dismissal remedy – non-responsive and non-compliant applicant – application dismissed
On 30 November 2022 Ms Daxene Miller (the applicant or Ms Miller), under the hand of her representative, made an application to the Commission under s 394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she was unfairly dismissed by her employer, Yadu Health Aboriginal Corporation (Yadu Health, the employer or the respondent).
Background
The matter was listed for conciliation before a Commission staff member on Wednesday 21 December 2022. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 5 December 2022 at their nominated email addresses. The parties were also requested to provide the Commission a contact telephone number by Monday 12 December 2022 for the purposes of dialling into the conciliation.
On 16 December 2022 Ms Miller emailed the Commission providing a contact telephone number for the conciliation. In her email, she stated “I will be looking forward to speaking with you on Wednesday 21st…”.
The conciliation listed on 21 December 2022 did not take place as a result of Ms Miller being unable to be contacted on the telephone number she provided.
This matter was subsequently allocated to me.
On 16 January 2023 my chambers listed a directions hearing for 30 January 2023. The Notice of Listing provided:
“• It is your responsibility attend a proceeding, proceedings conducted by telephone or video conference are no exception.
· The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time.
· Parties not attending proceedings risk the matter being dealt with in their absence.”
The Notice of Listing was sent to parties at their nominated email addresses.
The directions hearing took place on 30 January 2023. The employer attended together with its representative. No appearance was made by Ms Miller. Ms Miller’s representative, however, did attend and informed me that she had been unable to reach the applicant despite numerous attempts to do so.
Following the directions hearing on 30 January 2023, I issued the following directions:
“Noting that:
· Daxene Miller (the applicant) failed, without explanation, to personally attend with her representative at the conciliation which had been scheduled on 21 December 2022;
· The applicant’s representative was unable to contact the applicant on or following 21 December 2022 to advise of the conciliation having been unable to proceed on account of her non-attendance;
· The applicant having failed to attend the directions hearing on 30 January 2023 with her representative, as required by the Commission’s Notice of Listing;
· The applicant’s representative having advised the Commission on 30 January 2023 that her firm has had no contact from the applicant since the matter was referred to a member of the Commission for determination, including no contact, despite effort, to advise of the Commission’s requirement that she attend the directions hearing on 30 January 2023; and
· Yadu Health Aboriginal Corporation’s (the respondent or the employer) oral application on 30 January 2023 that the application be dismissed on account of the non-responsiveness of the applicant in circumstances where the respondent has both directly and through its representative attended on 21 December 2022 and 30 January 2023:
THE COMMISSION DIRECTS as follows:
[1] Permission has been granted to the respondent to be represented in this matter in accordance with s 596 of the Fair Work Act 2009 (Cth) (FW Act). Permission is granted to the applicant subject to the Commission being satisfied that the applicant is meeting her obligations to actively communicate with and provide timely instructions to her representative.
[2] The applicant is directed to advise the Commission in writing by close of business (5:00pm ACDT) on Monday 6 February 2023:
· Whether she intends to proceed with her application and meet the minimum obligations required of an applicant such as providing continuing and timely instructions and communication with her representative and attending any future conciliation listed by the Commission in person together with her representative (unless the Commission otherwise directs) and otherwise comply with any directions that may be issued for the filing of materials;
· Explanations for her non-attendance at the conciliation which had been scheduled on 21 December 2022 but was abandoned due to her non-attendance;
· Explanations for her non-attendance at the directions hearing on 30 January 2023; and
· Response to the employer’s application that these proceedings be dismissed summarily on the ground of the applicant’s non-responsiveness and the cost and consequence arising to the employer.
[3] Non-compliance with these directions may disadvantage the applicant. The applicant is advised that should the applicant not respond to these directions as required, and do so in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission shall on the employer’s application or of its own motion further consider whether the application should be summarily dismissed under s 587 of the FW Act without any further proceedings or notice and make a decision on that question.” (emphasis in original)
The directions were sent to the nominated email address of each party.
Notwithstanding the Commission’s directions, no communication (written or otherwise) was received by the Commission from Ms Miller providing an explanation for non-attendance at the directions hearing by close of business on 6 February 2023 or otherwise.
On 9 February 2023 my chambers sent the following email to the parties:
“Dear Parties
Further to the Commission’s directions of 30 January 2023, the applicant has not filed any materials or provided any explanation as to whether she intends to proceed with her application as was directed.
In accordance with direction [3] the Commission will now on the employer’s application or of its own motion further consider whether the application should be summarily dismissed under s 587 of the Fair Work Act 2009 (Cth). Any view the parties have on this matter, if they wish to express a view, should be provided in writing by no later than 9.00am (ACDT – SA Time) Monday 13 February 2023 after which time a decision will be made.”
On 11 February 2023 the Respondent advised my chambers, copied to the Applicant, that it “supports the dismissal of the application having incurred costs and devoted time to this application without apparent participation by the Applicant”.
Ms Miller did not provide a response to the email sent by my chambers on 9 February 2023.
Statutory provisions
Section 587 provides:
“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.”
Consideration
Ms Miller has failed to attend proceedings of the Commission including when personally directed to do so. She has also failed to comply with a direction to provide an explanation for her non-attendance at the directions hearing.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
In Peter Viavattene v Health Care Australia, a full bench stated:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is a respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”[1]
It is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing.[2] However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (s 587) or to do so for specific non-compliance on application by a respondent employer (s 399A).
Ms Miller has, for reasons unknown to the Commission, been non-responsive to further attempts to progress her application. It is disrespectful to the process Ms Miller has instituted to not attend proceedings when directed.
Ms Miller has been put on notice that her application is at risk of being dismissed on procedural grounds yet has failed to be responsive to that notification. The directions of 30 January 2023 stated:
“[3] Non-compliance with these directions may disadvantage the applicant. The applicant is advised that should the applicant not respond to these directions as required, and do so in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission shall on the employer’s application or of its own motion further consider whether the application should be summarily dismissed under s 587 of the FW Act without any further proceedings or notice and make a decision on that question.” (emphasis in original)
Further, the email sent by my chambers to parties on 9 February 2023 confirmed that “[in] accordance with direction [3] the Commission will now on the employer’s application or of its own motion further consider whether the application should be summarily dismissed under s 587 of the Fair Work Act 2009 (Cth).”
I am satisfied, in light of Ms Miller’s non-responsiveness and non-compliance, that her application has no reasonable prospects of success as it is not being actively prosecuted to a minimum required level. Section 587 is enlivened.
There are no discretionary reasons not to exercise the power vested by s 587 of the Commission’s own motion. The employer supported dismissal on this basis. These factors, coupled with prejudice arising to Yadu Health in defending an unfair dismissal claim that is not being actively prosecuted makes it appropriate to dismiss the application.
Conclusion
Ms Miller’s application is dismissed under s 587. An Order[3] to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
[1] [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd [2018] FWC 7814
[2] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017]
FWCFB 5952
[3] PR750579
Printed by authority of the Commonwealth Government Printer
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