Emma Bourke v The Trustee for WMB Enterprises Trust

[2024] FWC 3188

[2024] FWC 3188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emma Bourke
v

The Trustee for WMB Enterprises Trust

(U2024/10105)

COMMISSIONER YILMAZ MELBOURNE, 19 NOVEMBER 2024

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative

1. On 29 August 2024, the Applicant, Ms Emma Bourke (Ms Bourke) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Bourke alleged she was unfairly dismissed by the Respondent, The Trustee for WMB Enterprises (WMB) on 27 August 2024.

1. Ms Bourke failed to attend the scheduled conciliation with a staff conciliator of the Commission on 7 October 2024. The staff conciliator made 2 attempts to call Ms Bourke and left two voicemail messages. The matter was then allocated to me.

1. I issued directions on 14 October 2024 that the parties attend an in person hearing to determine the merits of the case on 27 November 2024, the Applicant was directed to file material by 5pm on 28 October 2024.

1. The Applicant failed to file her material. On 1 November 2024, well past the 28 October deadline, I issued a warning via email to Ms Bourke relating to her non-compliance with my directions to file her materials. A new deadline of 9am on 6 November 2024 was set for Ms Bourke to file and serve her materials.

1. Further, the Parties were directed to attend a Member Assisted Conciliation Conference (MAC).

1. On 12 November 2024, Ms Bourke did not appear for the scheduled MAC, nor did she reply to three phone calls and several emails. An email was sent to the Parties listing a non-compliance hearing on 18 November 2024.

1. Two calls were placed to Ms Bourke by my chambers leaving messages that her failure to appear in this non-compliance hearing may risk her matter being dismissed. Ms Bourke did not respond.

The Legislation

1. Section 587 of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal:

“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. On conclusion of the non-compliance proceedings, having considered Ms Bourke’s failure to attend any scheduled proceedings or respond to the Commission’s phone calls or emails, I am satisfied that her application should be dismissed for want of prosecution.

1. At s.587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c). The Commission may dismiss on its own motion where it considers that the matter cannot be prosecuted the Applicant does not comply with directions or engage with the Commission. I am also satisfied that through the attempts to contact her, Ms Bourke was on notice of the risk that her application may be dismissed if she did not engage with the Commission. 

1. On this basis, the application is dismissed for failure to comply with the Commission’s directions, attend any of the scheduled proceedings or respond to the numerous efforts to contact her. Due to her failure to engage with the Commission her application cannot be prosecuted. Therefore, pursuant to s.587 of the Act, the application is dismissed for want of prosecution.

COMMISSIONER

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