Jennifer Hartley v Loral Ipsum (Aust) Pty Ltd
[2024] FWC 3258
•26 NOVEMBER 2024
| [2024] FWC 3258 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jennifer Hartley
v
LORAL IPSUM (AUST) PTY. LTD.
(U2024/10975)
| COMMISSIONER REDFORD | MELBOURNE, 26 NOVEMBER 2024 |
Application for an unfair dismissal remedy; dismissal for want of prosecution
On 13 September 2024, the Applicant, Ms Jennifer Hartley filed an application with the Fair Work Commission for a remedy for unfair dismissal pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Hartley alleged she was unfairly dismissed by the Respondent, Loral Ipsum (Aust) Pty Ltd (the Respondent).
On 1 October 2024 the Respondent filed a Form F3 Response to the application in which it indicated its objection to the application on the basis it alleged Ms Hartley had not met the minimum employment period.
The application was allocated to my chambers on 28 October 2024, and I conducted a mention in relation to it on 1 November 2024. Ms Yuen appeared the mention representing Ms Hartley (together with Ms Hartley), and Mr Pearce appeared for the Respondent.
I issued Directions that the parties file and serve material in relation to the matter, including a Direction that the Applicant file an outline of argument, witness statements and a list of documents by 4:00PM on Monday 19 November 2024. The reference to “Monday” was an error and should have read “Tuesday”.
On 11 November 2024 the Respondent filed in my chambers an Application pursuant to s 590 of the Act seeking an Order that the Applicant produce documents.
My chambers contacted Mr Hartley and her representative via email to seek her views on this Application. This occurred on 11 November 2024 and on 13 November 2024. There was no response from Ms Hartley or her representative to either of these two communications.
I listed the matter for further mention, to take place at 4:00PM on 18 November 2024. When it appeared there would be no appearance for the Applicant, my chambers contacted both Ms Hartley and her representative by phone, and there was no response. An email was sent to Ms Hartley and her representative at 3:57PM (AEST) reminding them to attend the mention. No response was received by Ms Hartley, but at 3:59PM I received an email from her representative stating that it had not been able to establish contact with Ms Hartley and will be filing the “appropriate Form F54”. While no such Form has since been filed, it appears at this time Ms Hartley’s representative ceased to act for her.
I conducted the mention on 18 November 2024, and there was no appearance for Ms Hartley.
During the mention, the Respondent urged me to dismiss the application, presumably on the basis that it was not being prosecuted by Ms Hartley and its continuation was causing unfair prejudice to the Respondent.
Contrary to my Directions, Ms Hartley did not file any material in relation to the matter by 4:00PM Tuesday 19 November 2024.
On 20 November 2024 my chambers sent an email to the Applicant which said:
Dear Ms Hartley
You filed an unfair dismissal application against your former employer, Loral Ipsum (Aust) Pty Ltd, on 13 September 2024.
Since then, you have failed to comply with several Directions made by the Commission in relation to the conduct of the matter. Specifically:
You have not responded to requests that you provide your views about the Respondent’s request for an Order that you produce documents.
You did not attend the mention listed in relation to this matter on 18 November 2024.
You did not file any material in relation to the matter, despite a Direction having been made that you do so by 4:00PM on Tuesday 19 November 2024.
In these circumstances the Commission intends to list this matter for a further mention to hear from parties as to whether the Commissioner should exercise his power to dismiss you application pursuant to s 587 of the Fair Work At 2009 because you have failed to prosecute it.
This mention will take place at midday on Monday 25 November 2024 and your attendance is required. A notice of listing is attached to this email.
At the mention, you will be required to address the Commission on the reasons for your non-compliance in this matter and on the question of whether the application should be dismissed for want of prosecution.
Your continued failure to engage or communicate about this matter, and/or your failure to attend the mention hearing on Monday 25 November 2024 is likely to result in your application being dismissed.
I conducted a further mention on 25 November 2024. There was no appearance for the Applicant. Mr Pearce attended for the Respondent. Prior to the commencement of the hearing, my chambers again attempted to contact Ms Hartley by phone an email, and received no response.
During the hearing, Mr Pearce urged me to dismiss the application, on the basis that the Respondent continued to be inconvenienced by having to attend the Commission in relation to an application which does not appear to be being prosecuted by the Applicant.
Section 587 of the Act concerns the power of the Commission to dismiss an application for a remedy for unfair dismissal:
“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 omitted]
(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 words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss 587(1) (a), (b) and (c) including where the matter is not being prosecuted or where the Applicant does not comply with directions or engage with the Commission.
Ms Hartley has not participated in this proceeding at all since 1 November 2024. Numerous attempts to engage her have been made by my chambers: in respect of an Application for an Order for Production of Documents and two mention hearings. No response to these attempts has been received. Ms Hartley has also failed, without explanation to comply with Directions that she file and serve materials in relation to her application.
I am also satisfied that through the attempts to contact her, Ms Bourke was on notice of the risk that her application may be dismissed if she did not engage with the Commission – this was made explicit by an email sent to her by my chambers on 20 November 2024.
I am further satisfied that if the application is not dismissed, further prejudice to the Respondent will occur by its continued participation in a proceeding that is not being prosecuted by the Applicant.
I am satisfied that her application should be dismissed for want of prosecution pursuant to s 587 of the Act.
An Order[1] dismissing the application shall issue in conjunction for these reasons for decision.
COMMISSIONER
[1] PR781609
Printed by authority of the Commonwealth Government Printer
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