Hannah Yates v Horan Hotel Management
[2022] FWC 936
•27 APRIL 2022
| [2022] FWC 936 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hannah Yates
v
Horan Hotel Management
(U2022/577)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 27 APRIL 2022 |
Application for an unfair dismissal remedy – application dismissed for want of prosecution by the Applicant
The Applicant in this matter, Hannah Yates (Applicant) lodged an application under s.394 of the Fair Work Act 2009 (Act) on 10 January 2022 alleging that she had been unfairly dismissed by Horan Hotel Management (Respondent) on 6 January 2022.
The Fair Work Commission (Commission) made attempts to contact the Applicant by phone and by email using the Applicant’s nominated contact details on 11 January 2022, 24 January 2022, and 27 January 2022 in relation to incomplete details on her application.
On 28 January 2022, the matter was listed for staff conciliation to occur on 24 March 2022.
The Respondent filed a response to the claim on 28 February 2022 and raised a Jurisdictional Objection on the grounds that the Applicant was not dismissed.
The Commission made multiple attempts to contact the Applicant by phone and by email to confirm her attendance for the listed staff conciliation. It was brought to the Commission’s attention that the Applicant had moved overseas. The Applicant was uncontactable and unable to participate in a conciliation conference with a staff conciliator of the Commission. The matter was referred to my chambers for consideration.
On 30 March 2022, my Chambers sent email correspondence to the parties, notifying the parties that the matter had been allocated to my Chambers and directing the Applicant to contact my Chambers within 3 days to confirm whether she wished to proceed with the Application, in the following terms:
“I refer to the abovementioned matter which has been allocated to Deputy President Moltoni.
All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Deputy President Moltoni’s chambers at the contact details below. The parties are reminded that all correspondence with chambers is to be copied to the other parties in this matter to maintain transparency.
The Deputy President notes that the Applicant may currently reside overseas and has been unresponsive to the multiple attempts to contact her on her nominated contact details following lodgement of this matter. It is further noted that the Applicant has failed to participate in the conciliation listed on 24 March 2022.
The Deputy President directs the Applicant to contact Chambers within 3 days, using the details below, to confirm whether she wishes to proceed with the application.
If the Applicant no longer wishes to pursue the application, please file the attached Form F50 as soon as possible so as to avoid unnecessary costs for the parties.
Please contact Chambers should there be any queries in relation to this matter.”
No response was received from the Applicant.
On 4 April 2022, my Chambers unsuccessfully attempted to contact the Applicant by phone. Accordingly, my Chambers sent email correspondence to the Applicant, which provided the Applicant with a further period to respond as to the status of her application and further notified her that a failure to respond may result in the dismissal of her application, in the following terms:
“I refer to the email below which required you to contact Chambers within 3 days to confirm whether you wish to proceed with your application.
Chambers has not received a response.
The Deputy President will grant you a further period to contact Chambers about your application. You are directed to contact Chambers by no later than 5:00pm Thursday 7 April 2022. Failure to contact Chambers within this timeframe may result in the dismissal of your application.”
On 8 April 2022, having not received a response from the Applicant within the required period, I listed the matter for hearing and issued accompanying directions for the filing of material. The Applicant was required to file written submissions and her witness statements by 15 April 2022. The notice of listing and directions were sent to the Applicant by email.
The Applicant failed to file the required material.
On 19 April 2022, my Chambers sent email correspondence to the Applicant in the following terms:
“I refer to the Directions issued on 8 April 2022, which were sent to you by email (see attached).
In accordance with these directions, you were required to file a brief outline of submissions and any witness statements you intend to rely on by 4pm on 15 April 2022. To date, we have not received any material from you.
If you do not provide the materials as required under the Directions by 4:00pm (QLD) on Wednesday 20 April 2022 (as well as providing a reasonable explanation for the failure to comply), the Deputy President will presume you no longer wish to prosecute your case and will dismiss your application under s.587 of the Fair Work Act 2009 (reproduced below).
Your failure to file in accordance with the directions may also expose you to an application by the Respondent that your application be dismissed (under s.399A of the Act, also reproduced below).
Please notify the Commission promptly if you are for some reason incapable of meeting the requirements, such as because of illness or injury. If you wish to withdraw your application for unfair dismissal remedy, please advise.
Section 587 Dismissing applications
[Section 587 omitted]
Section 399A Dismissing applications
[Section 399A omitted]”
No response was received from the Applicant by the stipulated date.
On 20 April 2022, my Chambers sent the following email correspondence to the Applicant:
“I refer to your application for unfair dismissal remedy.
Deputy President Moltoni notes that she has not received a response to the below email of 19 April 2022.
If you do not provide any advice or explanation to the Commission by midday Friday 22 April 2022, your application will be dismissed.”
Again, the Applicant has not responded to the above correspondence nor made any contact with the Commission regarding her application.
It is clear from the above chronology that the Applicant has taken absolutely no steps to prosecute her unfair dismissal application despite repeated attempts by the Commission to progress the matter.
Against that background and as foreshadowed in the Commission’s most recent correspondence to the Applicant, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act, which 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.”
The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that goes further and suggests it should also only be used ‘sparingly’, which is a different notion altogether- see [2013] FWC 7080 at 39).
In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application she has agitated, despite the Commission’s approaches.
Section 587 of the Act, by way of its language, affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).
In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498, the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed to prosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):
“When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.
It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner’s decision is consistent with that approach.”
In the circumstances now before me, the employer has provided a response to the Applicant’s claims by way of its Form F3 filed on 28 February 2022. The employer’s position is that the Applicant was not dismissed. The employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.
In deciding to dismiss the Applicant’s application I have also had regard to the views of the Full Bench in Peter Viavattene v Health Care Australia[1] which said:
“[39] … There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is a respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”[2] (Emphasis added)
Conclusion
I exercise my discretion in this regard in the knowledge that the employer’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has persistently failed to prosecute her claim despite being afforded opportunity to do so. I dismiss the application for those reasons.
DEPUTY PRESIDENT
[1] [2013] FWCFB 2532.
[2] Ibid at [39].
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