Louisa Pietersen v Muzz Buzz Franchising Pty Ltd

[2024] FWC 1297

[2024] FWC 1297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Louisa Pietersen
v

Muzz Buzz Franchising Pty Ltd

(U2024/4156)

DEPUTY PRESIDENT BEAUMONT PERTH, 17 MAY 2024

Application for an unfair dismissal remedy – extension of time

1. On 11 April 2024, the Commission received an application from Ms Louisa Pietersen (the Applicant) asserting she had been unfairly dismissed by Muzz Buzz Franchising Pty Ltd (the Respondent).

1. The application was referred to my Chambers on 1 May 2024 and on that same date directions were issued for the parties to file their materials in respect of the Applicant seeking an extension of time in which to make her unfair dismissal application (First Directions).  The Applicant was required to file her materials by 1600hrs (AWST), on Wednesday, 8 May 2024.

1. The Applicant did not comply with the First Directions and no explanation was provided for the non-compliance.  Chambers issued an email to the parties on Thursday, 9 May 2024, alerting the Applicant to her non-compliance with the First Directions.  The Applicant was directed to write to Chambers explaining her non-compliance and seeking an extension of time in which to provide her materials (accompanied with reasons) by 1400hrs (AWST), on Friday, 10 May 2024 (Second Directions)

1. In addition to emailing the Applicant about her non-compliance with the First and Second Directions, on Friday, 10 May 2024, Chambers called the Applicant at 1601hrs (AWST). The Applicant informed Chambers as to the reason for her non-compliance and the Applicant was informed that a further non-compliance email had been issued, and she would have the opportunity to put in writing the reasons for her failure to comply with the First and Second Directions. The further non-compliance email informed the Applicant that the Commission has powers under s 587 of the Fair Work Act 2009 (Cth) (the Act) to dismiss an application where there is non-compliance with directions.  The email set out the hearing date and directions, regarding the filing and serving of materials in respect of the potential dismissal of the Applicant’s application.

1. Having received materials from both the Applicant and the Respondent regarding the potential dismissal of the Applicant’s unfair dismissal application because of her non-compliance with the First and Second Directions, I considered it appropriate in all the circumstances to determine the matter on the papers.  This was particularly the case given there was no factual contest concerning the issue. 

1. The Commission has the power to dismiss an unfair dismissal application on its own initiative.  It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]

1. Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal.[2]  That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]

1. The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:

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, or an application under 527F that does not consist solely of an application for a stop sexual harassment order, 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. Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.

1. As noted, in compliance with the directions issued on Friday, 10 May 2024, that required the Applicant to address why her application should not be dismissed for her non-compliance with the First and Second Directions, the Applicant filed her materials. 

1. Having regard to the circumstances of this matter, namely that having been contacted by telephone by Chambers on Friday, 10 May 2024, the Applicant:

(a)   complied with the directions of that same date;

(b)   filed materials in support of her extension of time application, which is due to be heard on Thursday, 23 May 2024; and

(c)   provided reasons for her non-compliance with the First and Second Directions, supported by evidence, which is perhaps best characterised as tragic;

I am satisfied that the Applicant’s unfair dismissal application should not be dismissed at this stage. 

1. It follows that in the circumstances of this matter, I am unable to conclude that the Applicant’s application has no reasonable prospects of success based on her failure to prosecute her case.  The Applicant’s unfair dismissal application will proceed as programmed albeit the Respondent will be provided with additional time in which to file responsive materials regarding the extension of time issue.  Amended directions will issue concurrently with this decision. 

1. In its response to the potential dismissal of the Applicant’s unfair dismissal application under s 587 of the Act, the Respondent referred to s 399A of the Act. Insofar as the reference to that section of the Act constituted an application to dismiss the Applicant’s application under s 399A(1)(b) of the Act, I consider the reasons detailed at paragraph [11] of this decision, are equally relevant to an application to dismiss the Applicant’s unfair dismissal application under that section. Were it necessary to do so, I would conclude that the dismissal of the Applicant’s unfair dismissal application under s 399A(1)(b) of the Act is unwarranted. The Applicant’s non-compliance with the First and Second Directions is understandable given her circumstances at that time.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].

[3] Ibid.

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