Kelly Chatfield v Bluegloss Pty Ltd

[2020] FWC 2694

[2020] FWC 2694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Kelly Chatfield
v
Bluegloss Pty Ltd
(C2020/1543)

DEPUTY PRESIDENT BINET PERTH, 9 JUNE 2020

Alleged dispute about any matters arising under the modern award and the NES; [s146].

[1] On 13 March 2020, Ms Kelly Chatfield (Chatfield) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging underpayments of entitlements by Bluegloss Pty Ltd (Bluegloss).

[2] Chambers endeavoured to contact Ms Chatfield by email on 19 March 2020 to arrange a conference, but Ms Chatfield did not respond to that correspondence.

[3] In the absence of a response from Ms Chatfield the Application was listed for a conference before myself on 14 March 2020. Chambers called Ms Chatfield at the telephone number provided in her Application at the scheduled time for the Conference however she did not answer her telephone. Chambers also endeavoured to contact Ms Chatfield by email to no avail.

[4] On 1 April 2020, Bluegloss filed a response to the Application disputing the allegations made by Ms Chatfield in the Application. The Response was supported by a considerable amount of documentary evidence.

[5] On 16 April 2020, Chambers wrote to Ms Chatfield noting that the Application identified an order for payment of alleged underpayments of entitlements as the remedy she sought. She was informed that the Commission did not have the power to make the order she sought. She was provided with information in relation to the powers of the Commission pursuant to section 739 of the FW Act and directed to bodies which might assist her to pursue the remedy she sought. She was invited to file a Notice of Discontinuance should she wish to no longer proceed with the application.

[6] Ms Chatfield did not file a Notice of Discontinuance and therefore on 7 May 2020 the parties were issued with directions which required Ms Chatfield to file and serve on Bluegloss by 4pm on 14 May 2020 submissions and evidence in relation to Application (Directions). Ms Chatfield was advised that compliance with the Directions was mandatory and a failure to comply with the Directions would result in the Application being dismissed.

[7] Ms Chatfield failed to file any materials within the timeframe set out in the Directions or since.

[8] Section 587 of the FW 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.

[9] As Ms Chatfield did not file any materials I have determined the Application on the papers.

[10] It has been long held by the Courts, Commissions and Tribunals 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 This is because such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[11] In Rebecca Tomas v Symbion Health [2011] FWA 5458, Commissioner Gooley (as she then was) stated the following with respect to the operation of section 587 of the FW Act:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”

[12] In McLeod v Kulgera Trading Company Pty Ltd, 3 Vice President Catanzariti applying the reasoning of Commissioner Gooley held that section 587 was sufficiently broad to allow an application in a section 365 matter to be dismissed for want of prosecution.

[13] Ms Chatfield failed to provide her availability to participate in a conference, failed to attend a listed conference, failed to respond to correspondence from Chambers and failed to file the materials she was directed to file by the dates specified in the Directions or at all.

[14] I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”  4 warrants the exercise of the discretion under section 587 of the Act for the dismissal of this application for want of prosecution.

[15] Furthermore, based on the materials currently before me, I am satisfied that the Application has no reasonable prospects of success of achieving the remedy sought in the Application.

[16] In the exercise of my discretion under section 587 of the FW Act I have decided to dismiss the Application. An order to this effect [PR720048] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719579>

 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   [2014] FWC 2112.

 4 Ibid [10].