Lucy Hansen v Deva the Deen Pty Ltd

[2024] FWC 1067

[2024] FWC 1067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Lucy Hansen
v

Deva The Deen Pty Ltd

(U2024/2627)

DEPUTY PRESIDENT O'KEEFFE PERTH, 24 APRIL 2024

Application for an unfair dismissal remedy - application dismissed pursuant to s.587 of the Act

1. On 8 March 2024, Lucy Hansen (the Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Deva The Deen Pty Ltd (the Respondent).

1. On 26 March 2024, my chambers issued directions instructing both parties to file materials in respect of the application and a hearing was scheduled for 1 May 2024.  The directions stated the following:

PARTIES MUST COMPLY WITH THE ATTACHED DIRECTIONS SET

OUT BELOW

Failure to comply with directions and attend the scheduled listings may result in:

- For the Applicant, their application being dismissed.

1. The directions instructed the Applicant to file her initial submissions by 4:00pm (AWST) Thursday 11 April 2024.  The Applicant’s materials were not provided to chambers within this timeframe, nor did the Applicant seek an extension of time to file her materials.

1. On 15 April 2024, chambers sent an email to the Applicant, which stated:

It is noted that you were due to provide your material as per the issued directions by 4:00pm (AWST) Thursday 11 April 2024. Chambers is not in receipt of the material or a request for an extension.

Deputy President O’Keeffe directs that the outstanding material is to be provided as soon as possible and by no later than 5:00pm (AWST), Tuesday 16 April 2024 along with the reason for the delay (with any supporting evidence). You are put on notice that your application may be dismissed under section 587 of the Fair Work Act 2009 if you fail to comply.

1. On 16 April 2024, the Applicant emailed chambers, outlining her desired outcomes in respect of the application and requesting that the Respondent contact her to discuss the matter.  The email sent by the Applicant did not provide the outstanding materials or provide a reason for the non-compliance with directions.  An extension of time to comply with the directions was also not sought.

1. Following receipt of the Applicant’s email on 16 April 2024, chambers sent the Applicant the following by email:

Chambers acknowledges receipt of your email below.  We remind you that the following direction stands:

Deputy President O’Keeffe directs that the outstanding material is to be provided as soon as possible and by no later than 5:00pm (AWST), Tuesday 16 April 2024 along with the reason for the delay (with any supporting evidence). You are put on notice that your application may be dismissed under section 587 of the Fair Work Act 2009 if you fail to comply.

If your material is not received by 5pm (AWST) today along with the reason for the delay in providing the material (with any supporting evidence), you risk your application being dismissed.

1. On 17 April 2024, chambers sent a final email to the Applicant regarding her non-compliance with directions, as follows:

I refer to previous correspondence regarding your non-compliance with the Directions issued in your matter.  While Deputy President O'Keeffe appreciates that you are trying to secure a resignation and statement of service from the Respondent, you need to either progress your application by complying with Directions or advise that you wish to withdraw the application.  Once again noting previous correspondence, you are now advised that if you have not complied with the Directions by lodging your submissions by 4.00pm (AWST) Thursday 18 April 2024 along with reasons for the delay then Deputy President O’Keeffe will dismiss your application.

1. The Applicant has not contacted chambers following the email sent by chambers on 17 April. 

1. Section 587 of the FW Act 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.

   (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 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. 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 (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant’s failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8]).

1. In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has been provided with ample opportunity to prosecute her application, however she has failed to comply with the directions issued. The Applicant has also been advised on at least four occasions including in the original directions issued, that failing to comply with the directions may lead to her application being dismissed. An order dismissing the application will issue.

DEPUTY PRESIDENT

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