Ebony Brauer v Pentagon International Pty Ltd

[2023] FWC 1988

[2023] FWC 1988

The attached document replaces the document previously issued with the above code on 9 August 2023.

PR number has been added.

Associate to DEPUTY PRESIDENT BOYCE

Dated 10 August 2023

[2023] FWC 1988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ebony Brauer
v

Pentagon International Pty Ltd

(C2023/2316)

DEPUTY PRESIDENT BOYCE SYDNEY, 9 AUGUST 2023

Application to deal with contraventions involving dismissal – dismissal of application for non-compliance with directions and for want of prosecution.

Background

1. On 21 April 2023, Ms Ebony Brauer (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

1. Pentagon International Pty Ltd (Respondent) disputes the jurisdictional basis upon which the Application was made.

1. The matter was allocated to my Chambers on 28 June 2023. A notice of listing and directions were issued to the parties (and their legal representatives) on 10 July 2023, with the matter listed for hearing to resolve the Respondent’s jurisdictional objection on 22 August 2023.

1. Direction [3] of the Directions issued on 10 July 2023 reads:

   “[3] By 4.00pm AEST on Monday, 7 August 2023, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection(s) raised.

2. Chambers received no correspondence from the Applicant or her legal representatives in compliance with the foregoing Direction [3].

1. On 8 August 2023, the Applicant was sent an email (copying in her legal representatives) (Show Cause Email) noting that the Applicant had failed to comply with Direction [3], and issuing the following further directions:

“[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 8 August 2023.

[2] If the Applicant does not comply with [the foregoing direction], or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

1. Chambers received no response in respect of the Show Cause Email from the Applicant or her legal representatives.

Legislative Provisions

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. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”i

Consideration

1. As the Applicant has made no attempt to comply with either Direction [3], or the Show Cause Email, and has failed to explain her non-compliance or otherwise make contact with my Chambers (on her own behalf, or via her legal representatives), I have decided to dismiss her Application.

1. I find that the Applicant’s non-compliance is wholly unexplained, and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or prosecute her case, and/or contact the Commission to explain her non-compliance, but has instead (including by silence) expressed a clear disinterest in process, procedure and the prosecution of her own case.

1. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Ms Merna Aziz, Solicitor, Gorval Lynch lawyers, for the Applicant.

Mr Dickran Yakenian, Solicitor, Juris League Consultancy, for the Respondent.

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