Eshana Humble v Skill Hire WA Pty Ltd Summary

[2024] FWC 3331

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Eshana Humble
v

Skill Hire WA Pty Ltd

(U2024/9225)

DEPUTY PRESIDENT EASTON

SYDNEY, 29 NOVEMBER 2024

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 8 August 2024, Ms Eshana Humble filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 15 October 2024 however Ms Humble advised that she could not attend.

On 15 October 2024, correspondence was sent to Ms Humble in relation to her non-attendance and was asked to email any request to proceed with a further conciliation within 2 working days.

To date, Ms Humble has not responded to any of the Commission’s attempts to contact her.

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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1).

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Ms Humble has been on notice of the likely consequences of her application if she does not respond.

In the circumstances I have decided to dismiss Ms Humble’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR781882).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Eshana Humble versus Skill Hire WA Pty Ltd, the applicant filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The matter was before the Fair Work Commission, which has jurisdiction to hear and determine such claims. Ms Humble’s application was filed on 8 August 2024, and a conciliation conference was scheduled for 15 October 2024. However, Ms Humble did not attend and did not respond to subsequent correspondence from the Commission, which gave her an opportunity to proceed with a further conciliation or otherwise communicate her intentions regarding the application.

The central legal issue before the Commission was whether it had the authority to dismiss Ms Humble’s application for unfair dismissal on its own initiative, under section 587(3)(a) of the Fair Work Act 2009. The Commission considered whether Ms Humble’s lack of participation and response to the Commission’s attempts to contact her amounted to a lack of prosecution, which could warrant dismissal of her application. The Commission noted that section 587(1) of the Act provides that the Commission may dismiss an application if it has no reasonable prospects of success, and section 587(3)(a) allows for dismissal on the Commission’s own initiative. Given that Ms Humble had not responded to the Commission’s attempts to contact her and had failed to participate in the proceedings, the Commission determined that her application had no reasonable prospects of success and dismissed it on its own initiative.

The Commission, exercising its discretion under section 587(3)(a), dismissed Ms Humble’s application for unfair dismissal on the grounds of lack of prosecution. The Deputy President concluded that Ms Humble’s failure to respond to the Commission’s attempts to contact her and to participate in the proceedings demonstrated that her application had no reasonable prospects of success. Consequently, the application was dismissed without further consideration. The Commission made a separate order to this effect (PR781882).

Eshana Humble v Skill Hire WA Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established