Hayley Phillips v Diamond Home Improvements Aus Pty Ltd

[2024] FWC 1432

[2024] FWC 1432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hayley Phillips
v

Diamond Home Improvements Aus Pty Ltd

(U2024/2094)

DEPUTY PRESIDENT EASTON SYDNEY, 4 JUNE 2024

Application for an unfair dismissal remedy

1. Ms Hayley Phillips was employed by Diamond Home Improvements Aus Pty Ltd until she was dismissed on 6 February 2024. On 26 February 2024, Ms Phillips filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

1. The Commission discovered that the Respondent was placed into liquidation on 23 April 2024. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

“After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

1. On 3 May 2024, correspondence was sent to Ms Phillips about these matters and included the following invitation:

“Deputy President Easton has formed the preliminary view that Ms Phillips’ claim cannot proceed unless she obtains leave from a Court. If Ms Phillips has a different view the matter will be set down for a jurisdictional hearing. Please advise the FWC if you wish the matter to be set down for a jurisdictional hearing by close of business on Friday 10 May 2024.”

1. Ms Phillips did not respond to this correspondence.
   
   

2. Further correspondence was sent to Ms Phillips on 16 May 2024, asking her to respond by 5:00pm on 21 May 2024. Ms Phillips was also advised that her application may be dismissed without further notice if she did not respond. Ms Phillips did not respond to this correspondence. An SMS was also sent to Ms Phillps telling her that an important email had been sent.

1. On 23 May 2024 the Commission tried to contact Ms Phillips by telephone but she could not be reached. A voicemail message was left advising Ms Phillips to respond to the correspondence as soon as possible. The voicemail also warned that if she did not contact the Commission her application would be dismissed without further notice.
   
   

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

1. 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.

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. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

2. For several weeks Ms Phillips has been on notice of a significant obstacle that most likely prevents her from continuing her case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing her application or mounting an argument as to how her claim can lawfully continue, Ms Phillips has just not engaged any further with the Commission.

3. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Phillips’ application.

1. I have separately made an order to this effect (PR775548).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR775547>