Deepanshi Joon v Medi Bar Pty Ltd
[2023] FWC 1064
•5 MAY 2023
| [2023] FWC 1064 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deepanshi Joon
v
Medi Bar Pty Ltd
(U2023/435)
| DEPUTY PRESIDENT EASTON | SYDNEY, 5 MAY 2023 |
Application for an unfair dismissal remedy – s.587 – application dismissed.
On 16 January 2023 Ms Deepanshi Joon made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging she had been unfairly dismissed from her employment with Medi Bar Pty Ltd.
A telephone directions hearing was held on 21 February 2023 and Directions were made to prepare the matter for hearing. Ms Joon has done almost nothing to progress her application since 21 February 2023.
On 27 April 2023 and the following self-explanatory email was sent to the parties:
“On 28 February 2023 directions were made for the parties to file evidence and written submissions ahead of a hearing.
Ms Joon did not comply with the directions and did not respond to numerous emails and messages sent to her.
On 5 April 2023 a further telephone directions hearing was convened to deal with Ms Joon's default. Ms Joon was given a further short period to file her written material. Ms Joon did not file any material.
A further telephone directions hearing was convened on 11 April 2023 but Ms Joon did not attend. The Respondent indicated that it intended to make an application for the proceeding to be dismissed under s.399A within a short period of time. No application was received. The Respondent was given a further short period to file its application but did not file any application.
A further telephone directions hearing was convened on 27 April 2023. Neither party attended.
Despite not complying with the directions issued by the Commission or attending the last two telephone directions hearings, and despite not doing anything else that would indicate that Ms Joon wishes to pursue her claim, Ms Joon has not discontinued her application.
The Deputy President is now considering whether to dismiss the application under section 587 of the Fair Work Act 2009 (Cth). The Deputy President is concerned that the application has no reasonable prospects of success because Ms Joon has failed to prosecute her claim. In other words, the Deputy President’s current view is that Ms Joon's claim cannot succeed because she has not filed any evidence in preparation for hearing or otherwise taken steps to actively pursue her claim.
If Ms Joon wishes to make any submissions as to why the Deputy President should not dismiss her application under s.587, and file any evidence in support of those submissions, she may do so by no later than 4:00pm on Wednesday, 3 May 2023. If Ms Joon does file any material the respondent must file any evidence or submissions in response by no later than 4:00pm on Friday, 5 May 2023.”
(original emphasis)
Consideration
Section 587 of the FW Act allows the Commission to dismiss an application on its own initiative in certain circumstances:
“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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The Commission has made numerous unsuccessful attempts to contact Ms Joon since the telephone directions hearing on 5 April 2023. Having failed to attend the directions hearings on 11 April 2023 and 27 April 2023 Ms Joon was given a final opportunity to contact the Commission in the clear knowledge that her application might be dismissed.
The power to dismiss a substantive application should only be exercised cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’ (see John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).
It not satisfactory to simply let the application continue on to the scheduled hearing date in case Ms Joon shows up. It is also not reasonable to expect Medi Bar to prepare and file evidence and submissions without knowing what evidence or argument it has to meet, particularly given the very strongly likelihood that Ms Joon will not attend the hearing.
The Commission has not received any contact from Ms Joon since 5 April 2023. Noting that Ms Joon did selectively respond to earlier communications from the Commission, and that Ms Joon has had a fair opportunity to make submissions as to why her application should not be dismissed, I am satisfied in all circumstances that it is appropriate to exercise my powers under s.587 of the Fair Work Act 2009 to dismiss her application for want of prosecution.
Accordingly, I will make an order dismissing the application (PR761657).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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