Laura McFarlane v Davmat Investments Pty Limited - [2024] FWC 2894

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Laura McFarlane v Davmat Investments Pty Limited

Details

AGLC: Laura McFarlane v Davmat Investments Pty Limited [2024] FWC 2894
Case: [2024] FWC 2894
Decision Date: 22 OCTOBER 2024

CaseChat Overview and Summary

Laura McFarlane filed an application against Davmat Investments Pty Limited for an unfair dismissal remedy under the Fair Work Act 2009. Davmat Investments contested the application, arguing that Ms McFarlane's employment did not meet the minimum period required for such a claim. Despite being requested to participate in the conciliation process, Ms McFarlane did not attend any of the scheduled hearings or comply with the Commission's directions. This lack of participation culminated in her application being dismissed under section 587 of the Act for want of prosecution. The Commission found that Ms McFarlane's repeated failure to engage with the proceedings demonstrated a clear unwillingness to pursue her claim, leading to the dismissal of her application.

The central legal issue before the Commission was whether Ms McFarlane's application should be dismissed due to her failure to comply with the procedural requirements set forth by the Commission. This involved interpreting the scope of the Commission's discretion under section 587 of the Act to dismiss an application for want of prosecution. The Commission considered the established principle that the dismissal of an application should be exercised with caution but also noted that the Act does not limit the circumstances under which an application may be dismissed. The Full Bench's decision in Raschilla v Ausino West Pty Ltd highlighted the importance of caution in exercising these powers but also recognised the Commission's broad discretion.

The Commission found that Ms McFarlane's persistent non-compliance with the Commission's directions and failure to participate in any of the hearings constituted a clear abandonment of her application. This non-participation required the Respondent to incur additional costs and resources in responding to a claim that Ms McFarlane had initiated but showed no intention of pursuing. Given the principle of ‘a fair go all round’, the Commission concluded that it was appropriate to exercise its discretion to dismiss Ms McFarlane’s application. The Commission determined that Ms McFarlane had effectively abandoned her application and that it was unjust to subject the Respondent to further proceedings or costs.

The application lodged by Ms Laura McFarlane on 18 July 2024 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act. This decision effectively ends the proceedings initiated by Ms McFarlane against Davmat Investments Pty Limited. The dismissal underscores the importance of compliance with the Commission's procedural requirements and the consequences of failing to participate in the dispute resolution process.

Orders