India Alice Martin v Coles Supermarkets Australia Pty Ltd

[2023] FWC 104

[2023] FWC 104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

India Alice Martin
v

Coles Supermarkets Australia Pty Ltd

(U2022/10086)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 16 JANUARY 2023

Application for an unfair dismissal remedy – applicant failed to engage in the process and did not participate in directions conference – directions for filing issued – no submissions or contact from applicant – taken to be no longer pursued – no reasonable prospects of success – unfair dismissal claim dismissed – order issued.

1. On 16 October 2022, Ms India Alice Martin (the Applicant), made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The application contended that Ms Martin’s employment had been unfairly terminated by Coles Supermarkets Australia Pty Ltd (Respondent) on 26 September 2022. The Respondent strongly contests the application.

1. By way of background, the application was subject to a conciliation before an FWC Staff Conciliator on 14 November 2022 but did not resolve. The application was subsequently referred to this arm of the Commission for hearing and determination.

1. A pre-arbitration directions conference was initially listed for 1 December 2022; however, an adjournment was sought by the Respondent. Prior to any adjournment being considered, an email was sent to the parties using contact details supplied to the Commission by each party. In the case of Ms Martin, this was via an email address that had been supplied to the Commission when filing the Form F2 and utilised for the earlier proceedings. The purpose of the email was to ascertain if rescheduling the matter as sought would create significant difficulties for Ms Martin. In the absence of any advice from the Applicant to the contrary, an adjournment was granted, and the directions conference was relisted for 15 December 2022. My Chambers also sent Ms Martin a reminder SMS to the mobile phone number contained in her application and left various messages advising of the directions conference.

1. Ms Martin did not participate in the directions conference and did not contact the Commission to advise of her non-attendance or otherwise confirm her intentions. The Respondent did participate in the pre-arbitration directions conference. [1]

1. At the conclusion of the directions conference, directions were issued to the parties. The relevant parts are set out below:

“A directions conference in the above matter was conducted on 15 December 2022. There was no participation by the Applicant despite being properly advised of the listing. Having heard from the Respondent, the Fair Work Commission (FWC) directs as follows:

1.On or before 12 January 2023, the Applicant, India Alice Martin must file in the FWC and provide to the Respondent, Coles Supermarkets Australia Pty Ltd, an outline of submissions and any evidentiary material, including witness statements for herself and any other witnesses, and any other written materials to be relied upon in her unfair dismissal application. See FWC Website for information on how to prepare materials for the hearing of this matter).

2. Should the Applicant not to file in the FWC, and provide to the Respondent, the materials required in accordance with Direction 1., the Commission will proceed to dismiss the application on the basis that it is no longer being pursued by the applicant, and as a result, has no reasonable prospects of success. This action will be taken without further notice to the parties or a hearing.

… ...”

1. The above directions were provided to Ms Martin using the contact details supplied with the Form F2 and which had previously (successfully) been used by the Commission to contact the Applicant.

1. Ms Martin did not contact the Commission or file any materials by the date specified in the directions; and has not done so up until the point that this decision is being issued.

1. Section 587 of the FW Act sets out the basis upon which the FWC may dismiss an application:

“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. This is not an application that falls within the limiting scope of s.587(2) of the FW Act.

1. I am satisfied that despite being properly advised of the various opportunities to advance her case, Ms Martin has failed to take any actions to engage with the Commission following the conciliation or to set out a case that is capable of succeeding. A contested case of this kind cannot succeed in absence of evidence and materials to support the contended basis of the application. The opportunities provided have been multiple and reasonable and Ms Martin was expressly put on notice that a failure to provide the requisite materials by the due date would lead to the dismissal of the application without further notice or hearing. By contrast, Ms Martin’s conduct of the matter has been unreasonable, and the Commission must also take account of the interests of the Respondent in its case management of the application.

1. I find that the circumstances of s.587(1)(c) of the FW Act have been met. I am also satisfied that I should exercise my discretion to dismiss the unfair dismissal matter. In that regard, I observe that Ms Martin has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter.

1. As a result, after considering the materials before the Commission and the circumstances of this matter, it is appropriate that Ms Martin’s application for an unfair dismissal remedy be dismissed. An order[2] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Appearances:

No appearance by or on behalf of the Applicant.

W Spargo of Lander & Rogers, with permission, for the Respondent.

Conference details:

2022
December 15
By Telephone.

[1] Mr Spargo of Lander and Rogers appeared for the Respondent, with permission granted (only in relation to the conference) under s.596 of the FW Act.

[2] PR749679

Printed by authority of the Commonwealth Government Printer

<PR749671>