Jessica Matsen v Sshl Pty Ltd T/A Star Liquor

[2023] FWC 1369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jessica Matsen
v

Sshl Pty Ltd T/A Star Liquor

(U2023/3329)

COMMISSIONER DURHAM

BRISBANE, 12 JUNE 2023

Application for an unfair dismissal remedy - application dismissed under s.587.

On 18 April 2023, Ms Jessica Matsen (Ms Matsen/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 Sshl Pty Ltd T/A Star Liquor (the Respondent).

I listed the matter for a case management conference/directions hearing by telephone on 1 June 2023.

On 31 May 2023 at 1:42pm the day prior to the case management conference/directions hearing, my Associate sent the following email to the parties:

“Dear parties,
I refer to the above matter and the case management conference/directions hearing listed by phone at 2:00pm (Qld time) tomorrow, 1 June 2023 (notice of listing attached).
Can the Applicant and Respondent please confirm attendance and best contact details before close of business today, 31 May 2023.”

On the same day, the Respondent confirmed their attendance and contact details.

My Associate attempted to contact Ms Matsen on the same day by telephone at 5:07pm, however the call went unanswered and a voice mail was left requesting the Applicant confirm her attendance and contact details.

On 1 June 2023 at 8:31am, my Associate sent the following email to the Applicant:

“Dear Ms Matsen,

I refer to my email below and my voicemail left on the contact number you provided to the Commission.

The Applicant (you) are requested to confirm attendance and best contact details by no later than 10:00am today, 1 June 2023, in preparation for the case management/conference directions hearing listed by phone at 2:00pm today, 1 June 2023 (notice of listing attached).

Should the Applicant wish to discontinue this matter, please see attached F50 Notice of Discontinuance which is to be completed and returned to Chambers by way of email, with the Respondent copied in”

On the same day, my Associate attempted to contact Ms Matsen by telephone at 12:16pm, however the call went unanswered, and a voice mail was left requesting the Applicant confirm her attendance and contact details.

My Associate attempted to dial in Ms Matsen into the case management conference/directions multiple times, however the calls went unanswered.

At 2:54pm that same afternoon, my Associate sent the following correspondence to Ms Matsen:

“Dear Ms Matsen,
I refer to the above matter, and refer to your non-attendance at today’s Case Management Conference/Directions Hearing listed at 2:00pm today, 1 June 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 12 May 2023.
On 12 May 2023, the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Case Management Conference/Directions Hearing by telephone for your application at 2:00pm on 1 June 2023.
You were required to confirm attendance and provide your best contact number by 10:00am on 31 May 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/Directions Hearing.
You have made no attempt to contact the chambers of Commissioner Durham to explain the reasons for not attending the Directions Hearing listed today.
The Commissioner directs you to provide your reason, in writing, for failing to attend the Directions Hearing by close of business, Thursday, 8 June 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 Chambers.Durham.C@fwc.gov.au.”

To date, no correspondence or telephone contact has been received from Ms Matsen.

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 Matsen has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Matsen 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].

Printed by authority of the Commonwealth Government Printer

In the matter of Jessica Matsen versus Sshl Pty Ltd T/A Star Liquor, the applicant, Ms Matsen, sought relief under the Fair Work Act 2009 for an unfair dismissal remedy. The respondent, Sshl Pty Ltd T/A Star Liquor, was accused of dismissing Ms Matsen without just cause or proper procedure. The Commission was tasked with evaluating Ms Matsen's application for an unfair dismissal remedy and determining whether the dismissal was indeed unfair.

The primary legal issue the Commission had to address was whether Ms Matsen's application should be dismissed due to her failure to prosecute her case. This included assessing whether Ms Matsen had adhered to the procedural requirements set forth by the Fair Work Act 2009 and the Fair Work Commission, specifically concerning attendance at the case management conference/directions hearing and communication with the Commission. The Commission was also required to consider if Ms Matsen's non-participation in the proceedings was unreasonable and warranted the dismissal of her application under section 587 of the Act.

In its decision, the Commission noted that Ms Matsen had failed to respond to multiple communications and had not attended the scheduled case management conference/directions hearing. Despite repeated attempts by the Commission to contact Ms Matsen and reminders about the hearing, she did not provide any explanation for her absence or take any steps to continue with her application. The Commission concluded that Ms Matsen's lack of participation and communication amounted to a want of prosecution. The Commission exercised its discretion under section 587 of the Fair Work Act 2009 to dismiss Ms Matsen's application for unfair dismissal, citing her failure to prosecute her case as the basis for the dismissal.

An order was made to dismiss Ms Matsen's application for an unfair dismissal remedy, effectively ending her pursuit of relief under the Fair Work Act 2009. The Commission emphasised that such a decision should only be made cautiously and in circumstances where there is a clear basis for dismissal, as it results in the extinguishment of the applicant's right to seek relief under the Act.

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