Kirstie Potter v Stephen John Rodrigues

[2024] FWC 2453

[2024] FWC 2453

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kirstie Potter
v

Stephen John Rodrigues

(U2024/6886)

DEPUTY PRESIDENT O’KEEFFE PERTH, 9 SEPTEMBER 2024

Application for unfair dismissal remedy - application dismissed pursuant to s.587 of the Act.

1. On 15 June 2024 Ms Kirstie Potter applied to the Fair Work Commission (FWC) seeking a remedy for alleged unfair dismissal. I note that in its Form F3 the Respondent notified of a jurisdictional objection on the basis that Ms Potter was not dismissed. Ms Potter’s Form F2 Application specified that her representative was Mr Trent Petherick of Petherick Cottrell Lawyers. The matter was conciliated on 12 July 2024 but no settlement was reached. The parties were advised on 24 July 2024 that the matter would be allocated to a member for hearing.

1. On 25 July 2024 Deputy President Easton’s Chambers wrote to Ms Potter and Mr Petherick advising that in its Form F3 Response the Respondent had identified Auris Pty Ltd ATF Rodrigues Family Trust as being the correct identity of Ms Potter’s employer. Ms Potter was asked to confirm to the FWC whether she wished the name of her employer to be corrected on her application or whether she wished to continue to claim Mr Rodrigues was the employer. Ms Potter was directed to respond by 1 August 2024 but no reply was received.

1. On 8 August 2024 Deputy President Easton’s Chambers emailed Ms Potter and Mr Petherick advising that a response was required by 9 August 2024 and that if no response was received Ms Potter’s application may be dismissed. Later that day a response was received from Mr Petherick which stated as follows:

“We are taking instructions and will substantively respond tomorrow.

We also advise that the parties are corresponding over settlement.”

1. This email was copied to Ms Potter.

1. No further correspondence was received from Ms Potter or Mr Petherick. On 19 August 2024 Deputy President Easton’s Chambers sent the following message to Mr Petherick, copied to Ms Potter:

“Please provide an update as to the progress of the matter.
The Deputy President is considering listing the matter for a telephone directions hearing at 9:00am on 23 August 2024 if a response is not received by 12:00pm on 22 August 2024.”

1. No response was received. At 12 noon on 22 August 2024 Deputy President Easton’s Chambers sent the parties a notice of listing for a directions hearing. At 1.45pm on that day Mr Petherick emailed Deputy President Easton’s Chambers and advised that he and his client would attend the directions hearing by telephone. Ms Potter did not attend the directions hearing and attempts to contact her were unsuccessful.

1. On 23 August 2024 Deputy President Easton emailed the parties and advised them that he had allocated the matter to my Chambers. On that day my Chambers sent the parties a notice of listing for a mention hearing to be held on Monday 2 September 2024 at 10.00am and a jurisdictional hearing to be held on 27 September 2024.

1. On 2 September 2024 the Respondent’s representative attended the mention hearing, which was conducted via Microsoft Teams. Neither Ms Potter nor Mr Petherick attended the hearing and neither provided any prior notice that they would not be available. My Chambers attempted to contact Mr Petherick and Ms Potter. Ms Potter proved to be uncontactable. My Chambers did manage to speak to a clerk in Mr Petherick’s office who advised that he was not available.

1. Later that day my Chambers sent an email to the parties as follows:

“Deputy President O’Keeffe notes with some concern the failure of the Applicant and her representative to attend the scheduled mention hearing at 10.00am (AWST) this morning. The Respondent has incurred the cost of having his representative attend without the benefit of any progress in the matter.

Further, Deputy President O’Keeffe has examined the material filed thus far by both parties and has concerns about the Applicant’s prospects of success based on the contents of that material. This is particularly relevant in light of advice from the Respondent that he may seek costs from the Applicant and her representative. Given this, the Deputy President directs as follows:

1.   Both the Applicant and her representative must each provide - in writing - reasons for their non-attendance at this morning’s mention hearing by 4.00pm (AWST) Wednesday 4^th September.

2.   The Directions originally issued in the matter are withdrawn. New Directions are attached which require the Applicant to submit her material first, and by 10 September 2024.

3.   Non-compliance with any of the above may result in the application being dismissed under s.587.

Parties are advised that upon receipt of the Applicant’s material the Deputy President may call another mention hearing.”

1. As at 5.00pm Friday 5^th September no response had been received from either Ms Potter or Mr Petherick.

1. Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8])

1. I have considered the history of non-compliance and non-attendance in this matter, both with respect to my Chambers and those of Deputy President Easton. It is clear to me that neither Ms Potter nor Mr Petherick have treated this application with the appropriate level of diligence that is expected of applicants and particularly of legal representatives. Given this, I am persuaded to exercise my powers under s587 to dismiss the application on the basis that it is not being appropriately pursued. An order dismissing the application will issue.

DEPUTY PRESIDENT

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