Laura McFarlane v Davmat Investments Pty Limited
[2024] FWC 2894
•22 OCTOBER 2024
| [2024] FWC 2894 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Laura McFarlane
v
Davmat Investments Pty Limited
(U2024/8327)
| COMMISSIONER CONNOLLY | MELBOURNE, 22 OCTOBER 2024 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.587
On 18 July 2024, Ms Laura McFarlane (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Davmat Investments Pty Limited (the Respondent).
On 04 August 2024, the Respondent lodged a form F3 Employer Response to application for an Unfair Dismissal Remedy in response to the Applicant’s application. In its response, the Respondent raised the objection that the Applicant’s employment did not meet the minimum employment period. The Respondent was requested to participate in the conciliation process despite the objection.
On 20 August 2024, the parties both attended a conciliation conference conducted before a Commission staff conciliator. The matter did not resolve at this conciliation.
Subsequently, the matter was allocated to my Chambers on 22 August 2024 for determination.
On 28 August 2024, Directions were issued for the filing of submissions and evidence and the matter was listed for a Mention on 04 September 2024, and set down for a Hearing on 17 October 2024. Paragraph [11] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.’
The Applicant did not attend the Mention at 12:00PM on 04 September 2024. By 12:00PM, my Chambers attempted to contact the Applicant on her mobile phone number that was provided in her Form F2 application. The Applicant was unreachable. The Applicant was also sent the following correspondence ahead of the Menion:
“Dear Ms McFarlane,
RE: U2024/8327 - Ms Laura McFarlane v Davmat Investments Pty Limited
I refer to the matter above and the Mention listed before Commissioner Connolly at 12:00pm TODAY, 4 September 2024
I have attempted to contact your telephone number several times and have not been successful.
Please note that if you do not attend the Mention by 12:05pm the Commissioner will proceed without you.”
The Mention was conducted without the Applicant. The Respondent was represented by Ms Jacki Manser and Ms Susan Peterson (People and Culture Manager and Area Operations Manager, respectively).
On 23 September 2024, my Chambers sent the Applicant correspondence noting that she did not comply with the Directions made on 28 August 2024 and advised the Applicant if she did not comply with the Directions by 4:00PM on the same day, the matter would be listed for a Non-compliance Hearing.
Furthermore, my Chambers advised the Applicant that her application might be dismissed entirely if she did not attend the Non-compliance Hearing. The Applicant was also invited to discontinue the application if she did not wish to pursue it further.
The Applicant’s initial submissions were due to be filed to Chambers and served on the Respondent by 4:00PM on 18 September 2024. The Applicant did not file any submissions, nor did she send any correspondence to the Commission. On 03 October 2024, the Respondent confirmed they had also not received any correspondence or materials from the Applicant.
On 08 October 2024, my Chambers attempted to contact the Applicant via mobile phone and sent a non-compliance email in the following terms:
“Dear parties,
I refer to the matter above and the attached correspondence.
In the absence of a response from the Applicant, the Commissioner has now listed the matter for a Non-compliance Hearing on Thursday, 10 October 2024 at 2:00PM (AEDT) via Video.
A notice of listing to this effect will be issued shortly.
Please note, if the Applicant does not attend this Hearing the application is likely to be dismissed entirely.
Alternatively, if the Applicant does not intend to pursue the application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable.”
Prior to the commencement of the Non-compliance Hearing on 10 October 2024, my Chambers attempted to contact the Applicant via mobile phone to confirm if she would join the non-compliance hearing and sent the Applicant the following correspondence:
“Dear Ms McFarlane,
I refer to the matter above and correspondence below.
Given your failure to comply to the Directions issued by the Commissioner to date, failure to attend today, and otherwise failure to provide any explanation as to why, the Commissioner has provided you until 4:00pm on Friday, 11 October 2024 to submit any reasons for this non-compliance.
In the absence of a reason, or further ignorance of the Commission’s correspondence, the Hearing will be vacated and the application will be prudently dismissed per s.587.”
The Applicant did not respond and did not attend the Non-compliance Hearing. The Respondent was present.
To this date, no communication has been received from the Applicant since the conciliation on 20 August 2024.
s.587 of the Act provides:
“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.”
It is well established that the three specific grounds for dismissal of an application under s.587(1) are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative.[1] Dismissal of an application “for want of prosecution” is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.[2]
In Raschilla v Ausino West Pty Ltd[3] (Ausino) the Full Bench emphasised that the Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an Applicant’s right to have their substantive application heard and determined by the Commission.
In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute her case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
As noted above, s.587(1) does not limit when the Commission may dismiss an application. Ms McFarlane has, in effect, abandoned her application and it is not appropriate that the Respondent be subject to further proceedings or costs in this matter. I am satisfied that I should exercise my discretion to dismiss Ms McFarlane’s application
ORDER
The application lodged by Ms Laura McFarlane pursuant to s.394 of the Act on 18 July 2024 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
[1] Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [48].
[2] Ibid.
[3] [2017] FWCFB 5952.
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