Liane Trainor v Wild West Pty Ltd
[2024] FWC 10
•2 JANUARY 2024
| [2024] FWC 10 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.587—Dismissing Applications
Liane Trainor
v
Wild West Pty Ltd
(U2023/11194)
| DEPUTY PRESIDENT O'KEEFFE | PERTH, 2 JANUARY 2024 |
Applicant failed to comply with directions - application dismissed pursuant to s.587 of the Act.
On 14 November 2023 Ms Liane Trainor (Ms Trainor) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act (the FW Act). I conducted a conciliation conference between the parties on 14 December 2023 but the matter was not resolved. As such, the Directions issued on 6 December 2023 remained in place. The Directions were served on Ms Trainor and her representative, Mr Trent Petherick of Petherick Cottrell Lawyers.
Pursuant to the Directions, the Applicant was required to lodge her submissions by 5.00pm (AWST) on 20 December 2023. No submissions were received by that time and the Applicant made no request for an extension or provided any other correspondence.
On the morning of 22 December 2023 an email was sent to the Applicant and her representative noting that Chambers had not received any submissions or a request for an extension and directing that the reasons for the delay and a request for an extension were to be submitted by 5.00pm (AWST) 22 December 2023, with the submissions due by 12.00 noon (AWST) on 27 December 2023. No response was received by 5.00pm (AWST) on 22 December 2023 and no submissions or other correspondence was received by 27 December 2023.
On 28 December 2023 Chambers emailed the Applicant and her representative noting the failure to comply with the directions in the previous email and advising that if the outstanding materials and an explanation for the delay was not received by 5.00pm (AWST) on 29 December 2023, the application would be dismissed under s.587 of the FW Act.
At 7.41pm on 28 December 2023 the Applicant emailed Chambers explaining that she did not know why her representative had not complied with the Directions or contacted the Commission. She noted that she herself had been unable to contact her representative but wished to continue with her application.
On 29 December 2023 the Applicant’s representative emailed Chambers and advised that submissions and other material would be filed later that day. The email did not contain a request for an extension nor any explanation for the delays and failure to respond to previous correspondence.
Notwithstanding the undertaking in the email of 29 December 2023 to provide all relevant material by close of business on that day, no material was received and no further correspondence such as a request for an extension. As at 5.00pm (AWST) on 2 January 2024, nothing further had been received by Chambers.
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[1] and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal[2] .
In this instance, I am persuaded to exercise my powers under s.587 to dismiss the application. The Applicant has repeatedly failed to comply with directions issued or to correspond with the Commission regarding such failure, which amounts to a failure to properly prosecute her application. While I acknowledge that the blame for the Applicant’s failure may primarily rest with her representative, that will be an issue for her to pursue directly with Mr Petherick. An order dismissing the application will issue.
DEPUTY PRESIDENT
[1] Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 at [12].
[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [16]; Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp[2013] FWC 7641 at [8].
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