Donna Johnson v Glad Group

[2020] FWC 6421

[2020] FWC 6421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donna Johnson
v
Glad Group
(U2020/11109)

DEPUTY PRESIDENT BULL SYDNEY, 1 DECEMBER 2020

Application for an unfair dismissal remedy - failure to prosecute application - dismissing applications under s.587.

[1] On 12 October 2019, Ms Donna Johnson (the applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The respondent employer was named as the Glad Group.

[2] The respondent filed a Form F3 employer response under the name of Glad Cleaning Services Pty Ltd raising a jurisdictional objection to the application, stating that there was no dismissal and that the applicant had resigned following an incident on 29 July 2020.

[3] The Commission records indicate the matter was listed for a telephone conciliation conference before a Fair Work Commission conciliator on 8 September 2020, however it did not proceed as the applicant did not make herself available. On 22 September the applicant advised the Commission by email that she wished to continue with her application.

[4] The matter was then referred to my chambers and listed for a telephone mention conference on 7 October 2020 with directions that the respondent file its submissions and witness statements in respect of its jurisdictional objection by 28 October 2020. The applicant was directed to file a response by 18 November 2020 and the hearing would take place on 30 November 2020.

[5] When contacted by my chambers for the telephone mention on 7 October 2020, the applicant stated that she was not aware of the telephone mention and did not want to be on the telephone and appeared to hang up and could not be contacted by telephone again.

[6] In accordance with the Commission Directions, the respondent filed their submissions and witness statements on 28 October 2020. No submissions were filed by the applicant.

[7] While no application was made by the respondent to have the application dismissed, they along with the applicant failed to attend the listed hearing at 10:00am on 30 November 2020, and neither party could be contacted at the time. The respondent later that morning returned the Commission’s telephone calls and advised that they did not think the matter was proceeding. This is despite the clear listing in the Directions that they received and upon which they filed their submissions and witness statements, and email advice sent on 19 October 2020 from the Commission that the matter was still to proceed.

[8] On 30 November 2020, the Commission advised the parties by email that it intended to dismiss the application unless reasons were provided that this course of action was not appropriate. No response has been received from the applicant and the respondent advised that they had no objection to the application being dismissed.

[9] In light of the failure of the applicant to file any submissions regarding the respondent’s jurisdictional objection raised in the employer response, and the failure to attend the listed hearing without explanation, it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[10] Section 587 of the Act 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.”

[11] Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 1 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[12] The Commission also has the power to determine a matter before it in the absence of a person who has been required to attend before it (s.600).

Consideration

[13] Although s.587 of the Act does not limit the grounds on which the Commission can, on its own motion (s.587(3)), dismiss an application, this discretion should be exercised with caution.

[14] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

•  is fair and just;

•  is quick, informal and avoids unnecessary technicalities;

•  is open and transparent; and

•  takes into account equity, good conscience and the substantial merits of the case.

[15] In considering the approach to be followed by the Commission where an applicant has failed to prosecute their case, the Full Bench in Viavattene v Health Care Australia² commented:

“[39] … 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…”

[16] In the present matter the applicant has been given a reasonable opportunity to participate in proceedings and prosecute her case, however she has not done so. She has not responded to the written correspondence from the Commission sent via email and has not responded to the voice messages left requesting that she do so.

[17] In view of the above and there being no explanation from the applicant as to why she has not filed and served any submissions and did not attend the listed hearing, she has failed to reasonably prosecute her application; consequently, the application is dismissed pursuant to s.587 of the Act.

DEPUTY PRESIDENT

Appearances:

No party appeared

Hearing details:

Sydney

2020

30 November

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 1   Remedies for unfair dismissal

2 [2013] FWCFB 2532