Hannah Dunhill v Bella Build & Design WA Pty Ltd
[2022] FWC 2512
•29 SEPTEMBER 2022
| [2022] FWC 2512 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hannah Dunhill
v
Bella Build & Design WA Pty Ltd
(U2022/6295)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 29 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
On 14 June 2022, the Commission received an application from Ms Hannah Dunhill (the Applicant) asserting she had been unfairly dismissed by Bella Build & Design WA Pty Ltd (the Respondent).
The conciliation conference with a staff member of this Commission listed for 14:15hrs (AWST), Monday, 1 August 2022, did not proceed after the Respondent advised the Commission it would not take part in a conciliation. The application was then referred to my Chambers.
On Tuesday, 30 August 2022, directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 16:00hrs (AWST), Friday, 2 September 2022.
The Applicant did not comply with the First Directions and no explanation was provided for the non-compliance. Chambers issued an email to the parties on Monday, 5 September 2022, alerting the Applicant to her non-compliance with the First Directions. The Applicant was directed to write to Chambers explaining her non-compliance and seeking an extension of time in which to provide her response (accompanied with reasons) by 16:00hrs (AWST), on Monday, 5 September 2022 (Second Directions). Chambers advised that if no correspondence was received, further directions regarding the Applicant’s non-compliance would be issued on Tuesday, 6 September 2022.
On Monday, 5 September 2022 by email time stamped 6:02pm the Applicant requested an extension of time in which to respond to the First Directions on the basis that she had been away for work and had not been able to access nor respond to personal emails (compliance with the Second Directions). The extension was granted, and the Applicant thereafter complied with the First Directions.
Chambers issued a further email on Wednesday. 7 September 2022, setting out the hearing date and directions regarding the filing and serving of materials (Third Directions). The Applicant was required to file with Chambers and serve on the Respondent her materials by 16:00hrs on Wednesday, 14 September 2022. No materials were received from the Applicant by the deadline on Wednesday, 14 September 2022.
Chambers sent an email to the Applicant on Thursday, 15 September 2022, observing that Chambers had not yet received a response from the Applicant or any correspondence requesting an extension of time, or reasons for the Applicant’s non-compliance. The Applicant was, in addition, informed that the Commission has powers under sections 399A and 587 of the Fair Work Act 2009 (Cth) (the Act)to dismiss an application where there is non-compliance with directions.
A telephone call was placed to the Applicant at approximately 09:50hrs on Thursday, 15 September 2022, in which a voicemail was left informing the Applicant that Chambers wanted to speak with her about the abovementioned email and advising her that repeated non-compliance with directions may lead to the dismissal of her application. The Applicant was directed to reply to the above-mentioned email or the telephone call before further non-compliance action was taken.
A further email was sent to the Applicant on Friday, 16 September 2022, regarding her non-compliance with the Third Directions. The Applicant was advised that the matter had been listed for hearing for 13:00hrs (AWST), Wednesday, 28 September 2022. A fourth set of directions were issued that set out the legislative provision permitting dismissal under s 587, directions to file material relating to why her application should not be dismissed by no later than 16:00hrs (AWST), Wednesday, 21 September 2022, and that the matter would be determined on the papers unless either party requested a hearing.
Further, the Applicant was telephoned at approximately 10:23hrs on Friday, 16 September 2022, to confirm she had received Chambers’ emails in light of the compliance deadline and that if the Commission did not hear from her, further non-compliance action could result in the dismissal of her application. The Applicant was urged to respond to the email dated 15 September 2022 or telephone Chambers.
The Applicant was again telephoned by Chambers at approximately 11:04hrs on Friday, 16 September 2022, to confirm she had received the non-compliance emails and was aware of hearing. The Applicant answered the call from Chambers and was said to have informed the Associate to the effect that:
a) she had been away on site for work and that she had not had enough time to respond to emails;
b) it was unfair and that she might as well pack it in, and that the Commission was forcing her to not go ahead; and
c) she wished to continue her application.
The Applicant was informed that the Commission would consider dismissing her application due to continued non-compliance with the directions and that she had the opportunity to submit material as to why her unfair dismissal application should not be dismissed. The Applicant was informed she had until Wednesday, 21 September 2022, to submit that material. The Applicant was further informed to read the directions email sent to her on the 7 September 2022, the first non-compliance email on the 15 September 2022, and the further non-compliance email on the 16 September 2022. The Applicant advised Chambers that she would review the emails and reply. No reply was forthcoming from the Applicant and no materials regarding the dismissal of her application were received.
In short, the Applicant has not filed materials in accordance with the Third Directions and has thereafter failed to respond to any correspondence from Chambers.
The Commission has power to dismiss an unfair dismissal application on its own initiative.
It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a)the objects of this Act, and any objects of the part of this Act; and
(b)equity, good conscience and the merits of the matter; and
(c)the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Since the matter was allocated to Chambers, the Applicant has done little to prosecute her case with the exception of responding to the First Directions, after having been prompted to do so. This is notwithstanding the allocation of this Commission’s resources to assist her with her unfair dismissal application, including emails and telephone calls to remind the Applicant to promptly file the materials necessary to pursue her case or to respond to the potential dismissal of her application. The Applicant’s non-compliance with the Third Directions and lack of response to the written correspondence thereafter issued by Chambers, in the absence of contemporaneous cogent reasons for such non-compliance, have led me to this conclusion.
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, dismiss her application pursuant to s 587(1)(c).
An Order[4] to this effect is issued concurrently.
DEPUTY PRESIDENT
Matter determined on the papers
[1] Peter Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
[3] Ibid [31].
[4] PR746012.
Printed by authority of the Commonwealth Government Printer
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