Lesley Messer v Allsigns NT

[2020] FWC 2492

[2020] FWC 2492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lesley Messer
v
Allsigns NT
(U2019/8640)

COMMISSIONER SIMPSON BRISBANE, 12 MAY 2020

Application for an unfair dismissal remedy – application dismissed.

[1] This matter concerns an application by Ms Lesley Messer to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Allsigns NT (the Respondent).

[2] The matter was listed for directions by telephone before me on 24 February 2020. Ms Messer appeared on her own behalf, and there was no appearance from the Respondent.

[3] At the Directions Hearing I requested that Ms Messer please provide the Commission with evidence of her loss of income since the dismissal, as it was apparent she had commenced employment immediately after her termination. Ms Messer was to provide this material to my chambers by 6 March 2020.

[4] On 6 March 2020, Ms Messer sent an email to my chambers advising she was not in a position to provide the material requested due to medical issues. Ms Messer requested an extension until 13 March 2020.

[5] On 13 March 2020, Ms Messer wrote to my chambers advising inter alia that she was unable to provide the documents as requested by the Commission. Ms Messer stated:

“I am unable to provide evidence that I suffered hardship after being unfairly fired without warning as I started my own business immediately and started making my own money immediately. As your Department is unable to help with any backpay/owings (sic) to me by All Signs NT I will be taking up the Commissioners suggestion to take my matter to the Ombudsman…”

[6] Ms Messer’s email further stated:

“…I do not wish to pursue any compensation after I was fired as the commissioner and I discussed, I understand now that this is all you are able to help me with.”

[7] Ms Messer also requested that chambers provide her with details for the Fair Work Ombudsman.

[8] On 20 March 2020 my chambers wrote to Ms Messer, providing contact details for the Fair Work Ombudsman as requested, and requesting that she advise whether it was her intention to formally withdraw her application. A form F50 Notice of Discontinuance was attached to the email. Chambers did not receive a response to the above email.

[9] On 15 April 2020 my chambers sent Ms Messer a further email advising as follows:

“Dear Ms Messer

I refer to the above matter and below correspondence.

The Commissioner understands that your email dated 13 March 2020 was advice that you were discontinuing your matter. Can you please confirm this is correct.

The Commissioner requests you please provide a response by close of business Wednesday 22 April 2020. If no response is received from you, the Commissioner may give consideration to dismissing your application.

Kind regards…”

[10] Chambers did not receive a response to this email.

[11] On 28 April 2020, my Associate contacted Ms Messer by telephone to determine whether Ms Messer had received correspondence sent to her on 20 March and 15 April. Ms Messer said she had been out of town and would check her emails and get back to my Associate the following day. Chambers did not receive a phone call from Ms Messer.

[12] On 8 May 2020, my Associate made another telephone call to Ms Messer to follow up. Ms Messer did not answer the call, and my Associate left a voice message requesting that Ms Messer please return her call.

[13] As at today’s date, Ms Messer has made no attempt to respond to the email correspondence sent to her, nor has she attempted to contact chambers by telephone as requested.

[14] I am satisfied it is appropriate in the circumstances to exercise power under s.587 of the Act to dismiss the application on the basis the Applicant has failed to prosecute the matter and there are no reasonable prospects of success.

[15] The application is dismissed.

COMMISSIONER

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