Leah Barker-Jones v The Body Shop Australia Pty Limited

[2024] FWC 2046

[2024] FWC 2046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leah Barker-Jones
v

The Body Shop Australia Pty Limited

(U2024/6624)

COMMISSIONER P RYAN PERTH, 1 AUGUST 2024

Application for an unfair dismissal remedy

Introduction and Background

1. On 11 June 2024, Ms Leah Barker-Jones (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

1. By the Application, the Applicant alleges she was unfairly dismissed from her employment with The Body Shop Australia Pty Ltd (Respondent) with effect from 11 June 2024.

1. On 9 July 2024, the Applicant failed to attend a conciliation conference and could not be contacted. The Applicant also failed to respond to correspondence that was subsequently sent to her seeking an explanation for that non-attendance.

1. On 23 July 2024, the matter was allocated to me for determination. On 24 July 2024, a notice of listing was issued to the parties which:

·     Listed the matter for a case management and directions hearing at 9:30am on 31 July 2024; and

·     Directed the parties to confirm their attendance and contact numbers by no later than 4:00pm on 30 July 2024.

1. The Applicant did not comply with the direction to confirm her attendance.

1. At 5:35pm on 30 July 2024, my Chambers sent correspondence to the parties. That correspondence referred to the matters set out above and put the Applicant on notice that a failure to attend the case management and directions hearing without prior notice may result in the Application being dismissed without further notice.

1. On 31 July 2024, the Applicant failed to attend the case management and directions hearing despite attempts by my Associate to contact the Applicant by telephone and email.

Legislative Provisions

1. Section 587 of the FW Act provides as follows:

“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.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

1. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so. In these circumstances, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

Disposition

1. The Application is dismissed. An Order to that effect will issue with this decision.

COMMISSIONER

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