Deborah Toni Schultz v Belbaker Bus Charter

[2023] FWC 1263

[2023] FWC 1263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Deborah Toni Schultz
v

Belbaker Bus Charter

(U2023/2160)

COMMISSIONER SIMPSON BRISBANE, 2 JUNE 2023

Application for an unfair dismissal remedy - application dismissed under s.587.

1. On 16 March 2023, Ms Deborah Toni Schultz (Ms Schultz /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 Belbaker Bus Charter (the Respondent).

1. The matter was listed for conciliation conference before a Commission staff conciliator on 18 April 2023. The conciliation did not take place and the matter was then allocated to me for consideration.

1. I listed the matter for an initial directions hearing by telephone on 19 May 2023.

1. On 19 May 2023 at 9:37am the day of the directions hearing, my Associate sent the following email to the Applicant:

“Dear Ms Schultz,

I refer to the above matter and the listing by phone at 2:00PM today, 19 May 2023.

Can you please confirm attendance and best contact details.

…”

1. No response was received from the Applicant.

1. Later that day, my Associate attempted to contact Ms Schultz for the directions hearing multiple times, however the calls went unanswered.

1. At 2:27pm that same afternoon, my Associate sent the following correspondence to Ms Schultz:

“Dear Ms Schultz

U2023/2160 - Ms Deborah Toni Schultz v Belbaker Bus Charter

On 11 May 2023, the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Directions Hearing by telephone for your application at 2:00PM, Friday 19 May 2023.

You were required to confirm attendance and provide your best contact number by 18 May 2023, however chambers did not receive this confirmation from you, despite following up.

Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you and you failed to appear for the Directions Hearing.

You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not attending the Directions Hearing listed today.

The Commissioner directs you to provide your reason, in writing, for failing to attend the Directions Hearing by close of business, 26 May 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. Alternatively, if you do not wish to continue with your application, please notify Chambers of this by email.

Your response can be e-mailed to [e-mail].

…”

1. To date, no correspondence has been received from Ms Schultz.

1. 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.”

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. 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]

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Schultz has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Schultz has shown no willingness to prosecute her case and has taken no steps to do so.

1. 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.

1. 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.

1. 
   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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