Jessie Mayes v Thomas Logistics
[2025] FWC 273
•31 JANUARY 2025
| [2025] FWC 273 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jessie Mayes
v
Thomas Logistics
(U2024/14342)
| DEPUTY PRESIDENT BELL | MELBOURNE, 31 JANUARY 2025 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case – failure to file material by due dates – application dismissed
On 29 November 2024, Ms Jessie Mayes (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Thomas Logistics (Respondent) on 19 November 2024.
In its Form F3 Employer Response, the Respondent has raised a jurisdictional objection that the dismissal was a case of genuine redundancy and that the employer is a small business and that it complied with the Small Business Fair Dismissal Code.
Upon the matter being allocated to me, I issued directions on 20 December 2024. The directions listed the matter for hearing on all matters for Monday, 17 February 2025, in person at the Fair Work Commission in Melbourne. The Directions also listed the matter for a mention/conference on Thursday, 9 January 2025 by video using Microsoft Teams and made timetabling orders for the filing of material. Relevantly, the directions required the Applicant to file with the Commission and serve on the Respondent any witness statements, other documentary evidence and submissions on which she intends to rely about all matters by no later than 4pm on Friday, 17 January 2025. Among other matters, the Directions also stated:
“Non-compliance: You must provide the material sought by the date specified. An extension of time will not be granted without substantial reason as to why you cannot
meet the requirements by the date specified.”,
and
“"Failure to comply with these Directions or to attend any conference or hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission”
At 13:55pm on the day of the Mention, my Chambers received an email from the Applicant advising that she would not be attending the Mention but providing limited further explanation for her non-attendance aside from that she was “not able to” attend. As the Respondent also indicated a preference for the mention to be adjourned, on 9 January 2025, my Chambers sent an email to the parties vacating the Mention and advising that “for the avoidance of doubt, all other directions stand, with the Applicant’s materials due 17 January 2025.” The matter also noted that failure to comply with the Directions may lead to the matter being dismissed.
The Applicant failed to file materials by 4pm on 17 January 2025 nor did she proffer any explanation for her non-compliance with the Directions. On Monday, 20 January 2025, my Chambers sent an email to the Applicant advising that she was non-compliant with the Directions and granting her an extension of time to file her materials by no later than 12pm the following day, 21 January 2025.
The Applicant did not file her materials by the 21 January deadline. On 29 January 2025, my Chambers again sent an email to the Applicant noting that no material had been filed despite a further email on 20 January 2025 and an extension of time to file materials, with no explanation for the non-compliance. This email stated, relevantly, that
“It appears to Deputy President Bell that you do not intend to proceed with your case. If you do not wish to continue with your case, please respond to chambers saying so, in which case your matter will be discontinued and the file will be closed.
Otherwise, the Deputy President provisionally intends to dismiss your application if he does not receive, by close of business tomorrow, 30 January 2025:
1.An explanation by you supported by appropriate evidence (eg, medical certificates) explaining why you have not filed your material nor provided any explanation to date about not filing that material;
2.All your evidence and submissions that you intend to rely upon for the court hearing on 17 February 2025.
A failure to provide the above material is likely to lead to your matter being dismissed without further notice to you.”
The Applicant did not file any materials by the 30 January deadline, nor did she provide any explanation for her failure to comply with the Directions to date. To date, the Applicant has not taken steps to prosecute her claim and as such, I will dismiss the application under s.587 of the Act. The possibility of dismissal was expressly communicated to the Applicant by the email of 29 January 2025 and by the directions of 20 December 2024.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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.”
I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance. Further, in the absence of evidence filed in accordance with the Directions (or permission or even an application to file evidence otherwise), the Applicant’s claim has no reasonable prospects of success.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the Applicant has not shown a willingness to prosecute her case. She failed to attend a mention hearing, failed to comply with directions of the Commission and has not provided an explanation for her failure to comply with directions, including in circumstances where it was expressly foreshadowed that her application would be dismissed if that information was not provided. There is also no material before me that would demonstrate her claim has an reasonable prospects of success.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR783846.
Printed by authority of the Commonwealth Government Printer
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