Haylie Brennan (Weingott) v Carlton and United Breweries Pty Ltd

[2022] FWC 990

[2022] FWC 990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Haylie Brennan (Weingott)

v

Carlton and United Breweries Pty Ltd

(U2022/45)

DEPUTY PRESIDENT YOUNG MELBOURNE, 29 APRIL 2022

Application for an unfair dismissal remedy – application dismissed for want of prosecution.

1. On 28 December 2021, Ms Haylie Brennan (Weingott) (Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

1. This matter was allocated to my chambers on 29 March 2022. Prior to allocation it had failed to resolve at staff conciliation which occurred at 11.15 am on 24 March 2022, following two earlier attempts at conciliation which the Applicant had been unable to attend.

1. On 30 March 2022 a notice of listing for hearing on 24 May 2022 was sent from my chambers with directions for the Applicant to file her material by no later than 5.00 pm Wednesday, 13 April 2022 (Directions).

1. The Applicant failed to file any material by 5.00 pm on 13 April 2022 in accordance with the Directions or otherwise communicate with the Commission or my chambers.

1. At 2.34 pm on 14 April 2022 Ms Kelly Pinsent, Manager, Employee Relations with the Respondent wrote to my chambers, stating that no materials had been received from the Applicant and inquiring whether the Applicant had filed her material with the Commission. At 2.58 pm that day my Associate wrote to the Applicant, copying in the Respondent, stating that the Commission was yet to receive any material from her and that the Applicant was required to file materials “as a matter of urgency, but no later than close of business Tuesday, 18 April 2022”.

1. The Applicant failed to file any material by close of business on 18 April 2022 or otherwise communicate with the Commission or my chambers.

1. At 9.33 am on 20 April 2022 my Associate wrote to the Applicant, copying in the Respondent, again setting out the Directions and stating the following:

“…
The Fair Work Commission is yet to receive any materials from the Applicant. The Applicant has not complied with the Directions of the Commission to file materials and failed to file materials as required by 18 April 2022. Accordingly, the Deputy President proposes to dismiss the Application for want of prosecution.

The Applicant is to provide any submissions as to why the Application ought not be dismissed by 5pm Friday, 22 April 2022. If no response is received by this time the Deputy President will dismiss the application under section 587 of the Fair Work Act 2009.”

1. The Applicant did not any submissions as to why the Applicant ought not be dismissed by 5.00 pm 22 April 2022 or at any other time, nor did she otherwise communicate with the Commission or my chambers.

Consideration

1. Section 587 of the Act sets out when the Commission may dismiss an application. It 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.”

1. In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion.[1] Accordingly, I consider section 587 confers a sufficiently broad discretion to allow an application under section 394 of the Act to be dismissed for want of prosecution by an applicant, in an appropriate case.

1. The Applicant has on multiple occasions failed to file material as directed or required. Further, she has not communicated at any time with the Commission or my chambers. Having made the Application, it is incumbent on the Applicant to prosecute her claim. I consider the Commission has afforded ample opportunity to the Applicant to file material in support of the Application. Further, Ms Brennan was placed on notice of the consequences of her non-compliance and still failed to respond. I infer from these matters that the Applicant does not intend to file any material in support of her Application.

1. I consider that the Applicant has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

1. The Application is dismissed.

DEPUTY PRESIDENT

<PR741109>

[1] See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].

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