Lynnette Anne Dowton v Southern Cross Cleaning Service

[2020] FWC 2857

[2020] FWC 2857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Lynnette Anne Dowton
v
Southern Cross Cleaning Service
(U2020/6770)

DEPUTY PRESIDENT MANSINI MELBOURNE, 2 JUNE 2020

Application for relief from unfair dismissal - s.587 - application dismissed.

[1] The Applicant in this matter, Ms Lynnette Anne Dowton (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act). By that application the Applicant sought an unfair dismissal remedy arising from her dismissal by Southern Cross Cleaning Service (the Employer).

[2] The application states that the Applicant was dismissed effective 22 April 2020. Although the application was dated 13 May 2020 it was not filed with the Commission until 15 May 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 May 2020. The application was therefore filed two days outside the 21 day period. In her application, the Applicant acknowledges it was not filed within 21 days of the dismissal taking effect and explains her reason(s) for the delay as follows:

“My sister passed away 8-4-2020 unexpectedly and wasn’t aware of the 21 day timeframe after several attempts trying to get legal advice (sic).”

[3] On 20 May 2020, the Commission attempted to contact the Applicant by telephone (at her nominated telephone number) to discuss the application. She was not able to be reached and voice messages were left requesting a return telephone call.

[4] On 26 May 2020, the Commission wrote to the Applicant explaining that her application was filed outside the statutory timeframe and that the time limit will only be extended if the Commission Member is satisfied of “exceptional circumstances” pursuant to s.394 of the Act. That correspondence included a direction to file and serve a witness statement addressing the matters the Commission is required to consider at s.394(3) by 4pm on 28 May 2020. The Applicant was advised that failure to comply with the direction may result in the Commission proceeding to determine the matter having regard to the material before it. No response was received from the Applicant by the stipulated time and date.

[5] At 5:45pm on 28 May 2020, an email was sent to the Applicant (at her nominated email address) in the following terms:

“Dear Ms Dowton,

I refer to your application for unfair dismissal, which was filed outside the statutory timeframe.

On 20 May 2020, the Commission attempted to contact you multiple times on your nominated telephone number to discuss your application. You did not answer and so voice messages were left requesting a return call.

On 26 May 2020, your application was referred to Deputy President Mansini for determination of whether to extend the time for filing. The Commission wrote to you at your nominated email address and attached Directions with which you were required to comply with by 4pm today, if you wished to proceed with your application. Those Directions included a note that, if you failed to comply, the Commission may proceed to determine the matter having regard to the materials before it.

You did not comply with the Directions or request an extension of the time in which to respond. Also, at the time of writing, the Commission has not received a return telephone call or any other communication from you.

Accordingly, we understand that you do not intend to continue with your application for unfair dismissal.

What do you need to do now?

If you have decided not to continue with your application, you can let us know by reply email or a telephone call to [phone]. This will end your case.

If you wish to continue, then the Commission will need to determine whether to extend the time for filing before you claim can proceed. In that case, you are required to respond to the Commission by no later than 10am on Monday 1 June 2020 in which you must:

•  explain to the Commission the reasons for your non-compliance with its Directions of 26 May 2020; and

•  include your signed witness statement, to address the matters specified in the 26 May 2020 Directions.

If we do not hear from you by 10am on Monday 1 June 2020, your application will be dismissed pursuant to s.587 of the Fair Work Act 2009 (Cth).

If you have any questions, please contact me.”

[6] No response was received from the Applicant by the stipulated time and date. 

[7] On 29 May 2020, the Employer corresponded with the Commission in the following terms:

“Please note that I sent an email to Lynette yesterday to explain to her that her pay was held because she did not turn up for work for several days without letting us know. We wanted to discuss with her if she was going to return to work, we tried contacting her many times, but she did not respond to us.

This has been an ongoing issue with Lynette, and we started getting complaints from customers that Lynette was not showing up for cleaning shifts and she would not let us know or respond to any communication.

My Operations Manager terminated her on the 21^st April, and it was our oversight (sic) that she was not paid for the 21.25 hours that she had worked. In the email I sent yesterday I explained that we have now paid her for the 21.25 hours in yesterday’s pay run and she will receive the money today. I asked her if there is anything else that she requires from for Southern Cross Cleaning so we could resolve any issues she has with her unfair dismissal claim.

I requested a read receipt on the email that I sent her, I got notification the email was read and as expected she has not responded.”

[8] A copy of the Employer’s correspondence of 29 May 2020 was provided to the Applicant.

Whether to dismiss the application

[9] In light of the Applicant’s failure to comply with directions of the Commission and failure to respond, it is open to the Commission to decide whether to exercise its discretion to dismiss the application for want of prosecution pursuant to s.587 of the Act.

[10] Section 587 of the 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.”

[11] Though s.587 of the Act does not limit the grounds on which the Commission can, on its own motion (s.587(3)), dismiss an application, this discretion should be exercised with caution (though there is some commentary that goes further and suggests it should also only be used “sparingly”, which is a different notion altogether). 1

[12] Section 587 of the Act affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act. 2

[13] In Sayer v Melsteel, 3the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly):

“When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.”

[14] The Full Bench in Viavattene v Health Care Australia 4 commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

“[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

[15] The Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

[16] In the circumstances now before me, the application was filed outside the statutory timeframe pursuant to s.394(2). The Commission does not have jurisdiction to hear the merits of an unfair dismissal claim that is not lodged within 21 days after the dismissal took effect. The claim can only proceed if the time limit is extended by a Commission member and the time limit will only be extended if the Commission member is satisfied there are “exceptional circumstances” pursuant to s.394(3).

[17] On the face of the application, the Applicant acknowledged that her claim was filed late. The reason provided on the initial application does not sufficiently explain the delay in filing and there is no explanation for why the application is marked as completed within time on 13 May 2020 but not filed until 15 May 2020. The Applicant has declined the opportunity to address the Commission about whether it should extend the time for filing pursuant to s.394.

[18] The Applicant has not responded to numerous attempts made by the Commission to contact her regarding her application. She has not complied with directions of the Commission in relation to her application. Further, the Applicant has provided no explanation to the Commission for her failure to comply and has not sought any dispensation. She has not communicated with the Commission or made any effort to prosecute this claim since it was filed.

[19] The Employer has provided a response to the Applicant’s claims by way of its 29 May 2020 email. The Employer’s position is that the Applicant was dismissed due to its inability to make contact with her, apparently having abandoned her employment. The Employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

Conclusion

[20] I exercise my discretion in this regard in the knowledge that application was filed outside the statutory timeframe, there are no identifiable exceptional circumstances and the Employer’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute her claim despite being afforded opportunity to do so.

[21] Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   See Resta v Myer Pty Ltd [2013] FWC 7080 at 39.

 2   See Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33.

 3   [2011] FWAFB 7498 at [16]-[17].

 4   [2013] FWCFB 2532 at [39].