Dominique Queiroz Lopes v TSG Robina Pty Ltd

[2023] FWC 450

[2023] FWC 450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dominique Queiroz Lopes
v

TSG Robina Pty Ltd

(U2022/12402)

COMMISSIONER SIMPSON BRISBANE, 23 FEBRUARY 2023

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

1. On 31 December 2022, Ms Dominique Queiroz Lopes (Ms Queiroz Lopes /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 TSG Robina Pty Ltd (the Respondent).

1. The matter was listed for conciliation conference before a Commission staff conciliator on 6 February 2023. The conciliation did not take place as the Applicant could not be contacted and the matter was then allocated to me for consideration.

1. I listed the matter for an initial directions hearing by telephone on 15 February 2023.

1. On 14 February 2023 at 4:36pm the day prior to the directions hearing, my Associate sent the following email to the Applicant:

“Dear Ms Queiroz Lopes,

I refer to the above matter and Case Management Conference (Mention/Directions) by telephone at 2:00PM tomorrow, 15 February 2023.

Can you please confirm attendance and best contact details.”

1. On 15 February 2023 at 11:31am, my Associate sent the following email to the Applicant:

“Dear Ms Queiroz Lopes,

I refer to the above matter and Case Management Conference (Mention/Directions) by telephone at 2:00PM (Qld time) Today, 15 February 2023.

Chambers notes you are still yet to confirm attendance.

Can you please confirm attendance and best contact details as a matter of urgency.”

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

1. At 5:10pm that same afternoon, my Associate sent the following correspondence to Ms Queiroz Lopes:

“Dear Ms Queiroz Lopes

U2022/12402 - Ms Dominique Queiroz Lopes v TSG Robina Pty Ltd

On 9 February 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 Wednesday 15 February 2023.

You were required to confirm attendance and provide your best contact number by 10:00am Tuesday 14 February 2023, however chambers did not receive this confirmation from you, despite following up multiple times.

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, Wednesday 22 February 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.

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

….”

1. The letter was also express posted to the Applicant at the address listed in the Form F2 Application.

1. To date, no correspondence or telephone contact has been received from Ms Queiroz Lopes.

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 Queiroz Lopes has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Queiroz Lopes 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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