Katarzyna Peza v Burleigh Heads Language Centre Pty Ltd

[2024] FWC 1349

[2024] FWC 1349

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Katarzyna Peza
v

Burleigh Heads Language Centre Pty Ltd

(C2024/1294)

COMMISSIONER SCHNEIDER PERTH, 22 MAY 2024

Application to deal with contraventions involving dismissal

1. Katarzyna Peza (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that they have been dismissed from their employment with Burleigh Heads Language Centre Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

1. The Respondent has objected to the application on the grounds that the Applicant has not been dismissed.

1. This decision deals with the repeated non-compliance of the Applicant in response to the Commission’s directions.

Background – Non-Compliance

1. Correspondence was sent to the parties, on 18 April 2024, outlining that the matter was listed for Hearing on 7 June 2024 to determine the objection. This correspondence included directions for the parties to file material in support of their respective positions on the objection.

1. The Applicant was directed to file their materials by 17 May 2024.

1. Nothing was received from the Applicant by the above date.

1. A follow up letter was sent to the Applicant, on the morning of 20 May 2024, regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by the morning of 21 May 2024. 

1. The letter advised a further failure to comply with the Commission's directions would be grounds for the application to be dismissed.

1. In the afternoon of 20 May 2024, the Applicant left a voicemail and emailed Chambers in reply to the further direction. The Applicant’s email queried what materials needed to be filed.

1. Later that day, Chambers responded to the Applicant explaining what materials needed to be filed.

1. No materials were received by the deadline above.

1. Subsequently, I instructed my associate to send the Applicant one final notice to comply.

1. A final notice was sent to the Applicant, in the late morning of 21 May 2024, and included a further direction to comply by 11:00AM on 22 May 2024.

1. This correspondence highlighted again that the file was at risk of closure.

1. A further follow up email was sent to the Applicant, just under an hour before the final deadline to comply, reminding them of the impending deadline and the risk of closure as well as encouraging they reach out for assistance to facilitate compliance.

1. As of the date and time of this Decision, no further communication from the Applicant has been received.

Legislation

1. Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

1. Section 587of the Act empowers the Commission to dismiss an application, including on its own initiative.

1. Section 587of the Act reads 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.

(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.”

Consideration

1. In this case, the Applicant has failed to comply with the Commission’s directions on several occasions and was on notice that non-compliance would be grounds for the application to be dismissed.

1. The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to the application if they did not.

1. The Applicant only sought to contact my Chambers regarding the direction to file after the deadline had already passed.

1. The Commission has expended effort to assist the Applicant in advancing their application, but it appears such effort has proved unfruitful as the Applicant will not actively prosecute their application.

1. The Commission has afforded the Applicant several opportunities to advance their application, despite their repeated non-compliance.

1. The Applicant has repeatedly failed to comply with the directions of the Commission.

1. The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

Conclusion

1. Consequently, my decision is that this application should now be dismissed on the initiative of the Commission under section 587(3) of the Act. An Order to this effect will be issued in conjunction with this decision. [1]

COMMISSIONER

[1] [PR775270].

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<PR775269>