Jennifer Scheurle v Opaque Multimedia Pty Ltd

[2019] FWC 13

[2019] FWC 13

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Scheurle
v
Opaque Multimedia Pty Ltd
(U2018/10360)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 2 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 8 October 2018, Ms Jennifer Scheurle (the Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Opaque Multimedia Pty Ltd (the Respondent).

[2] The matter was listed for conciliation on 1 November 2018 however was unable to proceed due to the unavailability of the Respondent. Correspondence was sent to the parties advising that the matter would proceed to arbitration if the parties did not request a further conciliation within two working days.

[3] No response was received from the Applicant and the matter was referred to arbitration. Directions were issued which required the Applicant to file her material by no later than noon on Thursday 13 December 2018. No such material was received from the Applicant.

[4] A phone call was made to the Applicant following up on her materials on 13 December 2018 however the Applicant did not answer and a voicemail was left confirming her submissions were overdue. This was followed by an email to the Applicant advising her that her submissions were overdue and requesting she contact the Commission.

[5] On 14 December 2018, the Applicant emailed the Commission to advise that she had not filed her submissions as she was travelling and had been attempting to negotiate a settlement with the Respondent. The Applicant requested an extension to 20 December 2018 to file her submissions.

[6] On 17 December 2018, an email was sent to the Applicant regarding her extension request advising that the Panel Head required further information before the request could be considered. No response was received from the Applicant.

[7] On 18 December 2018, further correspondence was sent to the Applicant advising that without a response the extension request could not be actioned and the submissions remained overdue. The Applicant responded to this email on 19 December 2018 advising that she was in talks with the Respondent and that it appeared that the parties would settle the matter.

[8] Correspondence was then sent to both the Applicant and Respondent on 19 December 2018 seeking to clarify if the matter had settled in principle so the Directions could be vacated. No response was received from either party. Later that same day, further correspondence was sent to the Applicant advising that if a response was not received as a matter of urgency the application would be listed for a non-compliance hearing. No response was received from the Applicant.

[9] The matter was listed for a non-compliance hearing before me before me on 21 December 2018. Despite numerous attempts neither party was able to be contacted for the hearing. Correspondence was subsequently sent to the Applicant advising that I was considering dismissing the application on my own motion pursuant to s.587 of the Act and requesting that the Applicant file submissions as to why I should not do so by no later than 4pm Monday 31 December 2018. The Applicant did not respond to this correspondence.

Consideration

[10] Section 587 of the Act sets out how 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.”

[11] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in s.587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confer a broader discretion. 1

[12] The lack of response from the Applicant leads me to conclude that she no longer intends to pursue her application. I have therefore decided to dismiss Ms Scheurle’s application for an unfair dismissal remedy pursuant to s.587 of the Act for want of prosecution. An order 2 to this effect will be issued separately to this decision.

COMMISSIONER

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

 2   PR703561