Keira Dashwood v Platinum Hair Salon

[2020] FWC 1110

[2020] FWC 1110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Keira Dashwood
v
Platinum Hair Salon
(U2019/11436)

DEPUTY PRESIDENT BULL SYDNEY, 28 FEBRUARY 2020

Application for an unfair dismissal remedy, failure to prosecute application, dismissing applications under s.587.

[1] On 12 October 2019, Ms Keira Dashwood (the applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009. (the Act) The respondent employer was named as Platinum Hair Salon with Mrs Jessica Soriente named as the Manager/Owner. 1

[2] The respondent filed a Form F3 employer response raising a jurisdictional objection to the application stating that as a small business it had complied with the Small Business Fair Dismissal Code. The F3 response stated that the employer was Jessica Louise Candy and that the trading name was Platinum Hair Salon. The response was signed by Mrs Candy as the Manager Owner/Operator.

[3] The Commission records indicate the matter was listed for a telephone conciliation conference before a Fair Work Commission conciliator, however for various reasons this did not take place.

[4] The matter was then referred to my chambers and listed for a telephone mention conference on 20 December 2019 with directions that the respondent file its submissions and witness statements in respect of its jurisdictional objection by 15 January 2020. The applicant was directed to file a response by 5 February 2020 and that the hearing would take place on 26 February 2020.

[5] On 17 December 2019 Mrs Candy for the respondent advised by email that she was unable to attend the telephone mention listed for 20 December 2019. The parties were then advised by chambers that the matter would proceed as listed for hearing on 26 February 2020 and that the parties were required to provide their written submissions by the listed dates as per the directions.

[6] On 7 February 2020 neither party had provided the Commission with any submissions as directed being by the 15 January 2020 for the respondent and 5 February 2020 for the applicant. A further email was sent by the Commission to the respondent on 7 February with a copy to the applicant requesting a response as to why the respondent had not filed any submissions and reminded both parties that they were required to comply with the directions and that the matter would still proceed to hearing on 26 February 2020.

[7] On the day of the hearing 26 February 2020, neither party had submitted any documentation or had contacted the Commission since the directions were issued nor was there any attendance at the hearing by either party.

[8] Chambers subsequently rang the applicant’s contact mobile number which indicated it was busy, a message was left for the applicant to phone chambers. The respondent was also contacted, and Mrs Candy advised she had not opened her emails since 19 December 2019 reminding her of the need to comply with the directions and that the hearing was still listed for 26 February 2020. The respondent was aware of the directions and the hearing date as per the directions sent on 17 December 2019, as a response was received from the respondent regarding her inability to attend the telephone mention.

[9] By close of business 28 February 2020, no response from the applicant has been received by the Commission to the voice message left on the morning of 26 February 2020.

[10] In light of the failure of the applicant to file any submissions regarding the respondent’s jurisdictional objection raised in the employer response and the failure to attend the listed hearing without explanation it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[11] Section 587 of the Act provides:

“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.”

Consideration

[12] Though s.587 of the Act does not limit the grounds on which the Commission can, on its own motion (s.587(3)), dismiss an application, this discretion should be exercised with caution.

[13] In considering the approach to be followed by the Commission where an applicant has failed to prosecute their case, the Full Bench in Viavattene v Health Care Australia 2 commented:

“[39] … There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative…”

[14] In the present matter the applicant has been given a reasonable opportunity to participate in proceedings and prosecute her case however she has not done so (noting that the same applies to the respondent). She has not responded to the written correspondence from the Commission sent via email and has not responded to the voice message left requesting that she do so.

[15] In view of the above and there being no explanation from the applicant as to why she did not attend the listed hearing, she has failed to reasonably prosecute her application; consequently, the application is dismissed pursuant to s.587 of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717136>

 1   In documentation supplied to the Commission the Manager is at various times named as either Mrs Jessica Candy or Mrs Jessica Soriente

 2   [2013] FWCFB 2532