Fiona Harte v Glencore T/A Hail Creek Mine

[2021] FWC 1356

[2021] FWC 1356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Harte
v
Glencore T/A Hail Creek Mine
(U2020/15299)

VICE PRESIDENT CATANZARITI SYDNEY, 15 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 27 November 2020, Fiona Harte (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, ‘Glencore T/A Hail Creek Mine’.

[2] On 4 December 2020, Glencore Australia Pty Ltd T/A Hail Creek Coal (the respondent) filed a response objecting to the application on the basis the applicant was not employed by the respondent.

[3] On 21 December 2020, my chambers sent correspondence to the applicant requesting submissions to be provided by 4:00pm on 28 December 2020 outlining the reasons why she believed she was employed by the respondent. We did not receive a response from the applicant pertaining to the objection raised by the respondent by that time.

[4] On 8 January 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 13 January 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] My chambers received correspondence from the applicant’s representative on 13 January 2021 seeking a 14-day extension to provide a response as the applicant was unable to attend the firm’s office prior to the firm’s closure from 18 December 2020 to 4 January 2021. I granted the applicant’s request for an extension of time and the response was to be filed by 4:00pm on 27 January 2021.

[6] On 27 January 2021, the applicant’s representative contacted my chambers by telephone asking how to amend an application as the respondent was incorrectly named in the application form. An email was also sent by the applicant’s representative to my chambers on the same day stating “we await your instructions in relation to the proper mechanism to amend our client’s claim.”. My chambers responded to the applicant’s representative advising that we are unable to provide advice on how to amend an application and a link to the benchbook on the Commission’s website was provided.

[7] On 2 February 2021, my chambers sent further correspondence to the applicant’s representative noting the Commission had not received a response. I directed that a response be provided by 4:00pm on 5 February 2021 and noted the application may be dismissed without further notice if a response was not received.

[8] On 5 February 2021, the applicant’s representative sent correspondence to my chambers seeking another extension of time to determine the method needed to amend an application. Another extension of time was granted to the applicant and a response was to be provided by 4:00pm by 12 February 2021. A response was not received by that time.

[9] Further correspondence was sent to the applicant’s representative by my chambers on 19 February 2021 directing the applicant to provide a response within the next 5 days. They were advised if we did not hear from them the application would be dismissed.

[10] To date, we have not received a response nor an amended application from the applicant regarding the respondent’s objection.

[11] 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.”

[12] The words, “[w]ithout 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)(a), (b) and (c).

[13] The applicant and the applicant’s representative have been given numerous extensions to file material and notwithstanding the indulgences given by the Commission there has been no attempt to actually file material or an amended application. There must come a point when enough is enough and that point has now been reached with the most recent non-compliance with the further extension that was granted. This failure to pursue the application leads to the inevitable conclusion that the applicant is not pursuing the case despite every such indulgence having been given.

[14] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

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