Kale Bell v Idrip Pty Ltd
[2024] FWC 1753
•3 JULY 2024
| [2024] FWC 1753 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kale Bell
v
Idrip Pty Ltd
(C2024/2825)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 3 JULY 2024 |
Application to deal with contraventions involving dismissal – failure to prosecute application – application dismissed pursuant to s 587.
On 1 May 2024, Ms Kale Bell made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). Ms Bell alleges that she was dismissed by Idrip Pty Ltd in contravention of the general protections provisions of the Act. A jurisdictional objection has been raised by the respondent contending that Ms Bell was not dismissed, but rather resigned her employment.
For the reasons that follow, Ms Bell’s application is dismissed.
Procedural context
On 29 May 2024, my chambers listed Ms Bell’s general protections application for a Mention to be held at 10:00 am on 6 June 2024. By an email sent that day, Ms Bell requested that the Mention be relisted to “after 3pm as I’ve started studying.” Ms Bell’s request was accommodated and the Mention was relisted to commence at 3:00 pm on 11 June 2024.
On 3 June 2024, after receiving the revised Notice of Listing, Ms Bell confirmed by email that she would attend the Mention with a support person.
On 11 June 2024, neither Ms Bell nor her support person attended the Mention. Prior to the commencement of the Mention, my chambers telephoned Ms Bell on the telephone number provided to the Commission, but the call was unanswered. At or about 3:06 pm my chambers sent an email to the parties in which Ms Bell was advised that her attendance at the Mention was urgently required. Ms Bell did not attend the Mention and the Mention did not proceed, despite the respondent’s attendance.
That day, my chambers sent an email to the parties in which Ms Bell was requested to advise whether she wanted to proceed with her general protections application. Ms Bell replied to advise that she can “be attendance tomorrow at 4pm.” In circumstances where a further Mention had not been convened for the following day (at 4:00 pm or at all), Ms Bell was again requested to confirm whether she intended to proceed with her application in circumstances where she had failed to attend the Mention without any explanation.
In the absence of a further response, on 13 June 2024 my chambers telephoned Ms Bell on her nominated number several times, but the calls were unanswered and there was no capacity to leave a voicemail.
On 13 June 2024, I issued Directions requiring Ms Bell to file submissions, witness statements or other materials in support of her argument that she was dismissed by the respondent by no later than 4:00 pm on 20 June 2024. Ms Bell did not file any material by this compliance date, or at all. An email was sent by my chambers to the parties on 21 June 2024 confirming this position.
On 26 June 2024 my chambers sent further correspondence to Ms Bell that referred to the Directions and Ms Bell’s apparent non-compliance. The email stated that in circumstances where it did not appear that Ms Bell was prosecuting her general protections application, I was considering whether to dismiss it pursuant to s 587 of the Act. Ms Bell was given the opportunity to file responsive submissions addressing the question of whether her application should be considered for dismissal pursuant to s 587 by no later than 12:00 pm noon on 1 July 2024.
No responsive material was received from Ms Bell by the compliance deadline. At 3:15 pm on 1 July my chambers wrote to Ms Bell to advise that she must urgently contact chambers as her application was at risk of being dismissed.
No response has been received from Ms Bell.
Consideration
Section 587 of the Act sets out when the Commission may dismiss an application. It provides:
(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.
…
(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.
The Commission is not limited in the ways in which it may dismiss an application under s 587(1). However, in the context of an application under s 365 of the Act, the Commission must not dismiss the application for a reason prohibited by s 587(2).
The Commission may consider dismissing an application under s 587(1) in circumstances where there has been a failure to comply with a direction of the Commission or otherwise take steps to prosecute an application. However, such a discretion ought to be exercised with caution and having regard to the matters that the Commission is required to take into account in the performance of its functions.[1]
Ms Bell has not meaningfully engaged with the Commission in relation to her application, and has failed to comply with the Commission’s Directions, including to advise whether she wishes to press her application at all. Ms Bell’s election not to file any material addressing her contention that she was dismissed by the respondent has delayed the progression of Ms Bell’s application, and remains wholly unexplained. I am satisfied that the historical context and Ms Bell’s conduct engages s 587(1) of the Act.
For the reasons that follow, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s 587(1) of the Act. Firstly, the Commission is required to perform its functions in a manner that is “quick.”[2] This is important in general protections matters where the Commission is exercising an essentially preliminary jurisdiction.[3] Notwithstanding the opportunities given to Ms Bell to progress her application, she has not done so. Second, Ms Bell has not responded to the Commission’s request that she confirm her intention to press her application. Third, Ms Bell has sent brief responsive emails to the Commission utilising the email address to which the Commission is directing its correspondence. Accordingly, there is a reasonable basis to assume that Ms Bell is in receipt of the Commission’s correspondence. The Commission has not been notified of any change of contact details. Fourth, on the Commission’s records, Ms Bell has not retained a representative and was granted a waiver of the filing fee, such that the time and cost incurred by Ms Bell in making her general protections application has been confined.
Conclusion and disposition
Having regard to the above matters and the conclusions reached, the application is dismissed.
DEPUTY PRESIDENT
[1] Fair Work Act 2009 (Cth) ss 577-578 as well as the objectives of the Act and Parts of the Act
[2] Fair Work Act 2009 (Cth) s 577(b)
[3] Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [90]
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