Madelyn Taylor v Northline Pty Ltd T/A Northline

[2021] FWC 6213

[2021] FWC 6213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Madelyn Taylor
v
Northline Pty Ltd T/A Northline
(U2021/7377)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 29 OCTOBER 2021

Application for an unfair dismissal remedy – non-responsive and non-compliant applicant – application dismissed

[1] On 28 October 2021, during a telephone hearing of this matter, I delivered an ex tempore decision dismissing Madelyn Taylor’s unfair dismissal application. I did so of the Commission’s own motion under section 587 and on the employer’s application pursuant to section 399A of the Fair Work Act 2009 (FW Act). These are my reasons for decision.

Background

[2] Madelyn Taylor (Ms Taylor) lodged an application for unfair dismissal remedy with the Commission on 19 August 2021.

[3] Northline Pty Ltd trading as Northline Transport (Northline) provided a Form F3, Employer Response on 31 August 2021, wherein it raised two jurisdictional objections (non-dismissal and minimum employment period).

[4] The matter was listed for conciliation by a staff conciliator on 14 September 2021. Conciliation on that date did not proceed due to Ms Taylor’s unavailability. Ms Taylor had provided the conciliator her contact number (on 28 August) but then on 9 September 2021 advised the Commission by email that:

“I have finally found a new job and am employed at the Women's and Children's Hospital in Adelaide. I started this week and work 8:30am to 5:00pm Monday to Friday, sadly I now can't get time off for the conciliation next Tuesday the 14/09/2021. I am very sorry for the inconvenience and hope I can arrange a time soon. Please let me know if the conciliation can happen later or if it can be completed at a different time in the day.”

[5] The Commission telephoned Ms Taylor on 13 September 2021. The call was not answered. A voicemail was left requesting a call-back to schedule future conciliation dates. No call back was received from Ms Taylor.

[6] The Commission rescheduled conciliation for 1 October 2021. The employer attended. No appearance was made by Ms Taylor.

[7] The Commission wrote to Ms Taylor and the employer on 6 October 2021 advising that in light of the aborted conciliation and in the absence of any further contact the application would be referred to a member of the Commission for hearing and determination.

[8] No response was received from Ms Taylor.

[9] On 19 October 2021 my chambers listed a directions hearing for 25 October 2021. The Notice of Listing provided:

“Parties are directed to attend at the above date and time. Failure to comply with this direction may lead to that party being disadvantaged, including by the application being dismissed without further notice.”

[10] The directions hearing took place on 25 October 2021. The employer attended. No appearance was made by Ms Taylor. No communication had been received by Ms Taylor in advance of the hearing.

[11] Immediately prior to the directions hearing (and upon the appointed time passing) my chambers telephoned Ms Taylor. The call was not answered. A voicemail was left advising of the hearing requesting a call-back. No call back was received from Ms Taylor

[12] Following the directions hearing I listed the application for a non-compliance hearing for 28 October 2021 and issued directions requiring Ms Taylor to advise the Commission in writing by close of business 27 October 2021 of the reason(s) for her non-attendance at the directions hearing and whether she intends to proceed with her application. The directions provided:

“The FAIR WORK COMMISSION notifies Madelyn Taylor that failure to attend the non-compliance directions hearing and comply with the above direction may result in the Commission exercising its power under section 587 of the Fair Work Act 2009 (FW Act) to dismiss the application via a public decision of its own accord.”

[13] Following the directions hearing, on 26 October 2021 the employer applied under section 399A of the FW Act for the application to be dismissed on the ground that Ms Taylor had unreasonably failed to attend a hearing and comply with directions.

[14] Notwithstanding the Commission’s direction, no communication (written or otherwise) was received by the Commission from Ms Taylor providing an explanation for non-attendance at the directions hearing, by 27 October 2021 or otherwise.

[15] On 28 October 2021 the non-compliance hearing proceeded, as listed (including on the employer’s section 399A application). The employer attended. No appearance was made by Ms Taylor.

[16] Upon considering the matter, I determined that the application should be dismissed under section 587 of the FW Act on the ground that it had no reasonable prospects of success given that, in the circumstances, it was not being actively prosecuted. I also dismissed the application under section 399A on the ground that Ms Taylor had unreasonably failed to attend two hearings and comply with the directions issued on 25 October 2021.

Statutory provisions

[17] Section 587 provides:

“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 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.” (notes omitted)

[18] Section 399A provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.” (notes omitted)

Consideration

[19] Leaving aside non-attendance at conciliation, Ms Taylor has twice failed to attend hearings of the Commission. She has also failed to comply with a direction to provide an explanation for non-attendance.

[20] It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.

[21] In Peter Viavattene v Health Care Australia, a full bench stated:

“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).” 1

[22] Leaving aside the jurisdictional objections in this matter, it is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing. 2 However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A).

[23] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.” 3 

[24] Ms Taylor has, for reasons unknown to the Commission, been non-responsive. If the reason is to be gleaned from her email of 9 September 2021 that she has secured alternate employment and does not wish to proceed with her application, it is disrespectful to the process Ms Taylor instituted to not file or inform the Commission of a discontinuance. If it is because Ms Taylor is occupied between the hours of 8.30am and 5pm weekdays it is equally discourteous not to respond to the Commission’s telephone calls and emails and seek rescheduling.

[25] Working in a new job after being dismissed does not displace an applicant’s obligation to actively and responsibly attend to litigation they have voluntarily initiated seeking a remedy concerning their former employment.

[26] Ms Taylor has twice been put on notice that her application is at risk of being dismissed on these procedural grounds; yet has failed to be responsive to either notification.

[27] I am satisfied, in light of Ms Taylor’s non-responsiveness and non-compliance that her application has no reasonable prospects of success as it is not being actively prosecuted to a minimum required level. Section 587 is enlivened.

[28] There are no discretionary reasons not to exercise the power vested by section 587 of the Commission’s own motion. These factors, coupled with prejudice arising to Northline in defending an unfair dismissal claim that is not being actively prosecuted makes it appropriate to dismiss the application.

[29] Sub-sections 399A(1)(a) and (b) are also satisfied. The respondent has made an application to dismiss Ms Taylor’s application, satisfying section 399A(2). Likewise there are no discretionary reasons not to grant the employer’s application.

Conclusion

[30] Ms Taylor’s application is dismissed under sections 587 and 399A of the FW Act. An Order 4 to this effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

No appearance by the Applicant.

V Godden, on behalf of Northline Pty Ltd T/A Northline

Hearing details:

2021

Adelaide (by telephone)

28 October

Printed by authority of the Commonwealth Government Printer

<PR735271>

 1    [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 2   Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952

 3   [2019] FWC 6264

 4   PR735272