Jeanine Mobbs v Ekon Enterprises Pty. Ltd
[2023] FWC 3354
•14 DECEMBER 2023
| [2023] FWC 3354 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jeanine Mobbs
v
Ekon Enterprises Pty. Ltd
(U2023/9050)
| DEPUTY PRESIDENT CROSS | SYDNEY, 14 DECEMBER 2023 |
Application for an unfair dismissal remedy
Miss Jeanine Mobbs (the Applicant) was employed by Ekon Enterprises Pty Ltd (the Respondent) from 25 July 2019 to her dismissal on 30 August 2023. The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 19 September 2023 (the Application).
Relevant Facts and Directions
On 13 November 2023, my Chambers issued a Notice of Listing for a Directions Hearing and possible Member Assisted Conciliation (the Directions Hearing), for 20 November 2023. The notice of listing contained draft directions for the filing of materials in this matter which was to be discussed at the Directions Hearing.
On 20 November 2023, the Directions Hearing was held. The Applicant attended alongside her Representative at the time. A Hearing was listed for 19 January 2024 and the draft directions were issued in final form in a Notice of Listing. The Final Directions relevantly stated:
FINAL DIRECTIONS
1. Jeanine Mobbs (the Applicant) is directed to file with the Fair Work Commission, and serve on Ekon Enterprises Pty. Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 30 November 2023.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 14 December 2023.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 21 December 2023.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 14 December 2023
Notes:
a) If you wish to vary these directions, you can make an application to do so in writing directly to the chambers of Deputy President Cross at: [email protected]
b) The Applicant and the Respondent should attempt to resolve this matter prior to the time for compliance with these requirements to minimise their costs in this matter.
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
d) Parties should liaise as to the provision and use of court books, exhibit bundles and authority bundles. Any materials must be supplied to the Chambers of Deputy President Cross 3 days prior to the listing.
On 1 December 2023, my Chambers issued the following non-compliance email to the Applicant:
Dear Parties,
I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 20 November 2023 (Listing Directions). Please see below Direction:
1. Jeanine Mobbs (the Applicant) is directed to file with the Fair Work Commission, and serve on Ekon Enterprises Pty. Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 30 November 2023.
The Applicant is required to email Chambers by 4:00pm on 4 December 2023 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Please note that any materials must be filed with the Commission via email to this address, being [email protected].
Regards,
On 4 December 2023, we received a Form F54 notifying that the Applicants representative had ceased acting for her.
On 5 December 2023, we received the following email from the Respondent:
Can you please advise whether anything has been received since the email below?
We note that we have not received anything from the Applicant.
My Chambers issued a further non-compliance email on 5 December 2023. It relevantly stated:
Dear Miss Mobbs,
I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 20 November 2023, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.
Chambers has contacted you via email on 1 December 2023 in relation to your non-compliance with Direction [1]. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.
I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.
You are required to either:
· file and serve your submissions and other documents as outlined in Direction [1]; or
· advise that you do not wish to file any materials; or
· make a request for an extension of time within which to file your materials, including any reason and evidence to support;
by 4:00pm on Wednesday, 6 December 2023.
On 6 December 2023, my Chambers received a further email from the Respondent enquiring as to the status of the Applicants materials. The email stated:
Can you please advise whether anything has been received with the extended deadline of 6 December?
On 13 December 2023 my Chambers issued a final email in an attempt to contact the Applicant. The email stated:
Chambers refers to the above matter and notes that a response has not been received to the email below. Nor to any of the non-compliance emails issued by Chambers on 1 and 5 December 2023.
The Applicant, Jeanine Mobbs, is directed to provide her response by no later than 4:00pm this afternoon. If no response is received by this time, the matter will be dismissed for want of prosecution.
The Applicant did not respond to any of the correspondence issued by my Chambers. To date no material has been filed, nor correspondence received.
Relevant Legislation
Section 587 of the Act provides:
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.
Consideration
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
DEPUTY PRESIDENT
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