Josephine Barcatta v Independence Australia Group Ltd

[2021] FWC 2291

[2021] FWC 2291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Josephine Barcatta
v
Independence Australia Group Ltd
(C2020/8301)

COMMISSIONER MCKINNON MELBOURNE, 26 APRIL 2021

General protections dispute involving dismissal – application to dismiss under s.587 for want of prosecution – not granted.

[1] Josephine Barcatta has applied to the Commission in relation to a general protections dispute involving dismissal. Her former employer, Independence Australia Group Pty Ltd, objects to the application on the ground that there was no dismissal. It seeks that the application be dismissed under s.587(1) of the Fair Work Act 2009 for want of prosecution, in connection with repeated non-compliance with directions of the Commission.

[2] The history of non-compliance can be briefly stated. On 24 December 2020, directions issued requiring, among other things, that Ms Barcatta file and serve evidence and submissions by no later than 5.00 pm on Friday, 15 January 2021. Ms Barcatta did not comply with the direction. On 18 January 2021, Ms Barcatta sought additional time to file her materials. Amended directions issued on 4 February 2020 requiring Ms Barcatta to file and serve her materials by no later than 5.00 pm on Monday, 15 February 2021. Again, Ms Barcatta did not comply with the directions. Independence Group applied for the application to be dismissed, and on 23 February 2021, both parties filed materials in connection with that application. The matter was then listed for Mention on 30 March 2021. Ms Barcatta appeared in person.

[3] Section 587 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.

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.”

[4] The power to dismiss an application is not limited to the grounds listed 1, but cannot be exercised on grounds s.587(1)(b) & (c) where the substantive application is brought under s.365 of the Act. The “power to dismiss a substantive application should only be exercised with caution, not hastily, and where there is a clear basis for doing so”2.

[5] On the face of the record, the merits of the case are not strong, but they are not so hopeless as to be unarguable. If the matter proceeds and a further extension of time is granted for Ms Barcatta to file and serve her materials, this will cause some inconvenience and cost to Independence Australia. The delay will not be unduly lengthy, while the parties’ exposure to costs appears relatively confined to the filing of an application and response, filing of materials in relation to the s.587 application and participation in the Commission’s preliminary processes. As a result, the prejudice flowing to Independence Australia from Ms Barcatta’s non-compliance is also confined.

[6] Ms Barcatta is currently homeless and living in crisis accommodation. She is dealing with significant mental health issues and the recent loss of her mother. Each of these factors, individually and together, are exceptional circumstances. They are clearly affecting her ability to participate in the proceedings.

[7] Ms Barcatta’s filing of materials on 23 February 2021 and her participation in the Mention on 30 March 2021 are sufficient to confirm that she is able, and wishes, to pursue the application. Ms Barcatta has given an undertaking that she will give the Commission and Independence Australia timely notice if further difficulties to comply with directions arise in the future.

[8] On balance, I am not satisfied that Ms Barcatta’s conduct demonstrates a clear unwillingness to participate in the proceeding. It is not in the interests of justice for Ms Barcatta’s application to be dismissed prematurely in the circumstances.

[9] The application under s.587 is dismissed. Directions will issue separately for the further conduct of the matter.

COMMISSIONER

Final written submissions:

Respondent, 4 March 2021.
Applicant, 17 March 2021.
Respondent in reply, 23 March 2021.

Printed by authority of the Commonwealth Government Printer

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 1   See Erika Marquez Acevedo v Mohammed Nisreen Majeed t/a New Multimedia Interactive [2020] FWC 6625.

 2   Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association [2019] FWC 4399.