Jenny Zanella v BaptistCare NSW & Act

[2021] FWC 6447

[2021] FWC 6447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenny Zanella
v
BaptistCare NSW & ACT
(U2021/9662)

DEPUTY PRESIDENT BOYCE SYDNEY, 24 NOVEMBER 2021

Application for an unfair dismissal remedy

Background

[1] On 28 October 2021, Ms Jenny Zanella (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Applicant claims she was unfairly dismissed by her employer, BaptistCare NSW & ACT (Respondent) on 6 October 2021.

[2] An unfair dismissal application must be made within 21-days after a dismissal took effect, or in such further time as the Commission may allow. 1 Given that the Applicant filed her application on 27 October 2021, it has been filed one day outside of the 21-day time limit. The Applicant should have filed her application by 27 October 2021 (to be within the 21-day time period).

[3] The matter was allocated to my Chambers on 12 November 2021. A Notice of Listing and Directions were issued to the parties on the same day, with the matter listed for Hearing to deal with the Out of Time Jurisdictional Objection on 1 December 2021.

[4] Orders [1] and [2] of the Directions issued 12 November 2021 read as follows:

“[1] By 4.00pm AEDT on Monday, 22 November 2021, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

[5] Chambers received no correspondence from the Applicant in compliance with Order [1].

[6] On 23 November 2021 the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with Directions, and issuing further Directions for the Applicant to:

“[1] … file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 23 November 2021.

[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.”

[7] Later that same day my Associate called the Applicant to follow up the Show Cause Email. The Applicant did not respond but called back at 8:44 pm that evening and left a brief voice message that she was returning the call.

[8] My Associate called the Applicant again on 24 November 2021 at 9:39 am, but the Applicant did not respond.

Legislative Provisions

[9] Section 587 of the Act provides as follows:

“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.”

[10] In Rebecca Tomas v Symbian Health[2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.” 2

Consideration

[11] The Applicant has made no attempt to comply with Directions to file and serve submissions and evidence prosecuting her case. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-compliance with Directions has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience I find that the Applicant has been provided with the opportunity to prosecute her case, and/or contact the Commission to explain her non-compliance, including warnings from my Chambers by email and multiple attempts to contact her by telephone, but has failed to comply.

[12] I find, pursuant to s.587(3)(a), that the application should be dismissed for want of prosecution. An Order dismissing the application will be published with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR736130>

 1   Fair Work Act 2009 (Cth) s.394.

 2   See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].