Kayla Renae Piwanski v Helen Whittaker Investments T/A the Gladstone Fruit Shop

[2022] FWC 1436

[2022] FWC 1436

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kayla Renae Piwanski
v

Helen Whittaker Investments T/A The Gladstone Fruit Shop

(U2022/1366)

COMMISSIONER SIMPSON BRISBANE, 8 JUNE 2022

Application for an unfair dismissal remedy

1. On 1 February 2022, Ms Kayla Renae Piwanski (Ms Piwanski/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Helen Whittaker Investments T/A The Gladstone Fruit Shop (the Respondent).

1. The matter was listed for conciliation before a Commission staff conciliator on 5 April 2022, however the conciliation could not proceed. The matter was then allocated to me on 24 May 2022 to determine the Respondent’s Jurisdictional Objections that the Applicant's employment did not meet the minimum employment period,  the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code. I listed the matter for a Case Management Conference (Mention/Directions) on 2 June 2022.

1. On the morning of the Mention/Directions, my Associate sent the following email to the Applicant at 10:11am:

“Dear Ms Piwanski,

Can you please confirm attendance and contact details for the Case Management Conference/ Directions listed for 12pm (Qld time) today, 2 June 2022.”

1. Later that day, my Associate attempted to contact Ms Piwanski on the number listed on the file for the Mention/Directions multiple times, however the calls went unanswered.

1. At 1:34pm that same afternoon, my Associate sent the following correspondence to Ms Piwanski:

“Dear Ms Piwanski

U2022/1366 - Ms Kayla Renae Piwanski v Helen Whittaker Investments T/A The Gladstone Fruit Shop

On 26 May 2022 the Commissioner issued a Notice of Listing in the above matter requiring you to attend a Case Management Conference (Mention/Directions) by telephone for your application at 12:00pm Thursday, 2 June 2022.

You were required to confirm attendance and provide your best contact number by 10:00am Wednesday, 1 June 2022, however chambers did not receive this confirmation from you.

Attempts were made to contact you on the number listed on your application, but the calls went unanswered and you failed to appear for the Case Management Conference (Mention/Directions).

You have made no attempt to contact the chambers of Commissioner Simpson to explain the reasons for not attending the Case Management Conference (Mention/Directions) listed today.

The Commissioner directs you to provide your reason, in writing, for failing to attend the Case Management Conference (Mention/Directions) by close of business Monday 6 June 2022. If no explanation is received from you the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

The Respondent would also be at liberty to make a formal application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009.

Your response can be e-mailed to [email protected]”

1. To date no correspondence or telephone contact has been received from Ms Piwanski.

2. 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.”

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

1. I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Piwanski has failed to respond to various correspondence from chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Piwanski has shown no willingness to prosecute her case and has taken no steps to do so.

1. In L. Sayer v Melsteel Pty Ltd,[3] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

1. In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution and I do so.

COMMISSIONER

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[3] [2011] FWAFB 7498 at [19].

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