Julie-anne Martin v ShopAngels

[2013] FWC 4522

[2013] FWC 4522

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie-anne Martin
v
ShopAngels
(U2013/5645)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 JULY 2013

Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 11 January 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Ms Julie-anne Martin (the Applicant). The Applicant’s employment was terminated on 28 December 2012 by ShopAngels (the Respondent). It is to be noted that at the time of the filing of the application, the Applicant had named Berrigan Doube Lawyers (Applicant’s Representative) as her representative.

[2] The matter was listed for conciliation on 12 February 2013 however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file in the Fair Work Commission (the Commission) and serve submissions, witness statements and other documentary material she wished to rely on by noon, 29 April 2013.

[4] On 30 April 2013, the Applicant’s Representative sent correspondence to the Commission requesting for a further period to file material as they were “still seeking instructions from [their] client”. The Commission granted this request and the Applicant was now directed to file her material in the Commission by no later than noon, 6 May 2013.

[5] The Applicant failed to comply with this direction.

[6] On 15 May 2013, the Commission received a Form F54 - Notice of Representative Ceasing to Act from the Applicant’s Representative.

[7] The matter proceeded to a non compliance hearing on 30 May 2013 before Commission Wilson. At the hearing Commissioner Wilson decided to grant a further period to the Applicant to lodge her material. The Applicant was directed to file her material by noon, 17 June 2013.

[8] The Applicant failed to comply with this direction.

[9] On 17 June 2013, the Respondent filed an objection to the Applicant’s application pursuant to s.399A of the Act which sought the dismissal of the Applicant’s application. The Respondent based their objection on grounds which included failing to comply with numerous directions.

[10] The Applicant was sent a copy of the Respondent’s application in addition to correspondence which directed the Applicant to file submissions and other documentary material in respect of the Respondent’s application by close of business, 1 July 2013. The Applicant was advised that if she failed to comply with this direction, her application would be dismissed.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided to by the Act.

[12] As the Applicant did not file any material in response to the Respondent’s objection, has failed to comply with numerous directions and has not been in contact with the Commission, I have decided to determine the matter on the papers.

[13] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[14] Section 399A of the Act came into effect on 1 January 2013 and “is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.” 1

[15] As the Fair Work Amendment Act 2012 came into effect after the Applicant’s termination, being 28 December 2012, I am satisfied that I must dismiss the Respondent’s application pursuant to s.399A of the Act.

[16] However, I have had regard to all of the circumstances of this matter and in particular the Applicant’s failure to comply with the Commission’s directions in addition to her failure to contact or correspond with the Commission.

[17] 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.

[18] The Applicant has not put forward any material to support her claim that she was unfairly dismissed. She has also failed to take any steps, since her representative advised that it no longer acted for her, to prosecute her claim. Further, she has not contacted the Commission to explain her failure to prosecute. Accordingly, I have concluded that the application has no prospect of success and I have decided to dismiss the Applicant’s application pursuant to s.587(1)(c) of the Act. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 Explanatory Memorandum - Fair Work Amendment Act Bill 2012 at paragraph 162 of Schedule 6 - Unfair Dismissal.

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