Julie Miriama Valusaga v Roof Leak Services Pty Ltd Atf Mitchell Family Trust

[2022] FWC 1690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julie Miriama Valusaga
v

Roof Leak Services Pty Ltd Atf Mitchell Family Trust

(U2022/4410)

COMMISSIONER HUNT

BRISBANE, 1 JULY 2022

Application for an unfair dismissal remedy – applicant shown no willingness to prosecute case – failure to attend the conference – non-compliance with Commission directions – application dismissed.

On 14 April 2022, Ms Julie Valusaga made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from Rook Leak Services Pty Ltd Atf Mitchell Family Trust (the Respondent) and that her dismissal was harsh, unjust or unreasonable.

Ms Valusaga nominated 10 April 2022 as the date of dismissal. In a Form F3 completed by the Respondent, it is accepted that the dismissal date was 10 April 2022. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

On 2 June 2022, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 13 June 2022.

Ms Valusaga did not participate in the telephone conference on 13 June 2022, despite numerous attempts by my Associate to contact her. Correspondence was emailed to the parties from my chambers requiring Ms Valusaga to advise why she had not participated in the conference. No response was received.

Further correspondence was emailed to the parties from my chambers on 17 June 2022, reminding Ms Valusaga of her requirement to file her material by 22 June 2022, or risk the application being dismissed pursuant to s.587 of the Act. Ms Valusaga failed to file the material, as directed, and no response was received.

On 24 June 2022, the following correspondence was issued to the parties:

“Dear Parties,

Reference is made to the above matter. It is noted that no correspondence or materials have been received from the Applicant.

Due to the Applicant’s failure to comply with the Commissioner’s directions for the filing of materials, this matter will be listed for a Non-Compliance Hearing, by telephone, at 3:00pm (AEST) on Thursday, 30 June 2022.

Failure to participate in the Non-Compliance Hearing may have consequences for the Applicant’s application. The Commissioner may decide to dismiss the application for want of prosecution.

A notice of listing will follow shortly.”

On 30 June 2022, I conducted a telephone Non-Compliance Hearing. Numerous attempts were made by my Associate to contact Ms Valusaga, without success. Mr Will Mitchell, Directing Manager appeared for the Respondent. I informed Mr Mitchell of the numerous attempts made to contact Ms Valusaga, without success and indicated my preliminary view was that I would dismiss the application pursuant to s.587 of the Act.

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.”

After considering the numerous attempts to engage Ms Valusaga in her application to the Commission, including her failure to attend the conference and Non-Compliance Hearing without any explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Ms Valusaga has demonstrated an unwillingness to prosecute her own application and consequently I find that the application has no reasonable prospects of success.

An Order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Julie Miriama Valusaga lodged an application with the Fair Work Commission against Roof Leak Services Pty Ltd Atf Mitchell Family Trust, alleging unfair dismissal. The application was made within the statutory time limit and was in accordance with the Fair Work Act 2009. The Respondent acknowledged the dismissal date and the application was therefore considered valid. The case was assigned to Commissioner Hunt who issued directions for the parties to file material by certain dates and to attend a telephone conference. Ms Valusaga did not participate in the conference or comply with the filing directions, despite multiple attempts to contact her.

The primary legal issue before the court was whether Ms Valusaga's application for unfair dismissal had reasonable prospects of success. This hinged on her willingness to prosecute the case, which was demonstrated by her failure to attend the conference or comply with the Commission's directions. The court was required to consider whether the application should be dismissed for want of prosecution. The relevant statutory provisions were sections 394 and 587 of the Fair Work Act 2009, which provide for the dismissal of applications that are not made in accordance with the Act, are frivolous or vexatious, or have no reasonable prospects of success.

The Commissioner found that Ms Valusaga had shown no willingness to prosecute her application, as evidenced by her failure to attend the conference and comply with the Commission's directions. The Commissioner concluded that the application had no reasonable prospects of success and dismissed it pursuant to section 587(1)(c) of the Fair Work Act 2009. This decision was made on the Commissioner's own initiative, in accordance with section 587(3)(a) of the Act. The Commissioner noted that the application was not frivolous or vexatious, but simply lacked prospects of success due to Ms Valusaga's lack of engagement.

The Commission issued an order dismissing the application. The dismissal was on the basis that Ms Valusaga had demonstrated an unwillingness to prosecute her case, leading to the conclusion that the application had no reasonable prospects of success. This decision underscores the importance of compliance with procedural directions in the Fair Work Commission and the potential consequences of failing to engage in the process.

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