Jessica Lloyd v The Trustee for Tran Family Trust
[2023] FWC 3296
•8 DECEMBER 2023
| [2023] FWC 3296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Jessica Lloyd
v
The Trustee For Tran Family Trust
(U2023/9089)
| COMMISSIONER DURHAM | BRISBANE, 8 DECEMBER 2023 |
Application for an unfair dismissal remedy - application dismissed under s.587
On 29 September 2023, Ms Jessica Lloyd (Ms Lloyd/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with The Trustee For Tran Family Trust (the Respondent).
I listed the matter for a case management conference/directions hearing by telephone on 10 November 2023.
On 9 November 2023, the Ms Lloyd’s representative at the time advised my chambers that Ms Lloyd was unfit to participate in the conference mentioned above and subsequently requested the conference be vacated and directions be issued for the matter to be determined.
I issued directions and a notice of listing on 10 November 2023.
On 20 November 2023, the Applicant’s representative filed a Form F54 to advise they cease to act for the Applicant.
On 24 November 2023, in accordance with my directions, both parties were to file their material. My chambers received the Respondent’s material but no material was filed by the Ms Lloyd.
On 27 November 2023, in response to the Applicant’s non-compliance my Associate sent the following email to parties:
“Dear parties,
Reference is made to the above matter and the Respondent’s email below providing their material (see attached) in accordance with the Commissioner’s directions.
It is noted the below email has not been copied to the Applicant. Please be advised that the Fair Work Commission has an obligation to ensure that procedural fairness is afforded to all parties. As such, the general rule is that any correspondence sent by a party to the Commission must be copied to all parties in the matter. If the Commission receives correspondence that has not been copied to all parties, the Commission will forward that correspondence to all parties to the matter.
Furthermore, as per the directions issued by Commissioner Durham on 10 November 2023 (see attached notice of listing and directions), material for the Applicant (Ms Lloyd) was due to be filed with the Commission, and served on the Respondent by 24 November 2023.
The Commission has not received any material from the Applicant, nor has it received a request for an extension.
Please advise by 4:00pm today, why material for the Applicant has not been filed in accordance with the Commissioner’s directions.
It is noted that failure to comply with these directions may result in the matter being determined in your absence without further notice and a decision adverse to your interest may also be made. Should you choose not to respond, the Commissioner must make a decision based only on the material that has been provided.”
My Associate attempted to call Ms Lloyd on 29 November 2023 by telephone at 11:16am, however the call went unanswered and a voice mail was left requesting the Applicant respond to the email from 27 November 2023. My Associate attempted to call Ms Lloyd on 30 November 2023 at 10:52am, again the call went unanswered and a voice mail was left as previously done.
On 30 November 2023 I issued a notice of listing for parties to attend a case conference to discuss the matter.
On 1 December 2023, my Associate sent the following email to parties:
“Dear parties,
Reference is made to the above matter and the case management conference on Monday, 4 December 2023 at 2:00pm (Qld time) (see attached notice of listing).
Regarding the Respondent’s email below – nothing is required from the parties to prepare for the conference.
It is noted that the Applicant (Ms Lloyd) has not confirmed attendance for the conference, as such Ms Lloyd is asked to please confirm attendance and best contact details by close of business today.”
On 4 December 2023, as Ms Lloyd did not confirm her attendance, my Associate sent the following email to parties:
“Dear Ms Lloyd,
Reference is made to the above matter and the case management conference on today at 2:00pm (Qld time) (see attached notice of listing).
Further to my previous email below, could you please confirm attendance and best contact details by no later than 12:00pm today.”
On the same day, my Associate attempted to call by telephone at 1:03pm, however the call went unanswered and a voice mail was left requesting the Applicant confirm her attendance.
My Associate attempted to dial in Ms Lloyd into the case management conference several times, however the calls went unanswered.
At 2:55pm that same afternoon, my Associate sent the following correspondence to Ms Matsen:
“Dear Ms Lloyd,
I refer to the above matter, and refer to your non-attendance at today’s Case Management Conference listed at 2:00pm today, 4 December 2023 (see the attached notice of listing), despite Chambers attempting to contact you on multiple occasions. I note that you were made well aware of today’s listing by way of the notice of listing issued on 30 November 2023.
On 30 November 2023, the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Case Management Conference by telephone for your application at 2:00pm on 4 December 2023.
You were required to confirm attendance and provide your best contact number by 10:00am on 1 December 2023, however Chambers did not receive this confirmation from you, despite following up multiple times.
Attempts were made to contact you on the number listed on your application. The number went straight to message bank on the numerous attempts to call you and you failed to appear for the Case Management Conference.
You have made no attempt to contact the chambers of Commissioner Durham to explain the reasons for not attending the listing today or provide a response to emails from Chambers regarding your non-compliance to file material which were due on 24 November 2023 as per Commissioner Durham’s directions issued on 10 November 2023.
The Commissioner directs you to provide your reason, in writing, for failing to attend the Case Management Conference by close of business, today, 4 December 2023. If no explanation is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009. If you do not wish to continue with your application, please find attached a Form F50 – Notice of Discontinuance.
Your response or Form F50 – Notice of Discontinuance can be e-mailed to [email protected]”
To date, no correspondence or telephone contact has been received from Ms Lloyd.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Lloyd has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Lloyd has shown no willingness to prosecute her case and has taken no steps to do so.
In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the Applicant has failed to prosecute their case without examining the merits.
In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2011] FWAFB 7498 at [19].
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