Madison Selim v McDonald's Australia Limited

[2024] FWC 3225

[2024] FWC 3225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Madison Selim
v

McDonald's Australia Limited

(C2024/7125)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 22 NOVEMBER 2024

Application to deal with contraventions involving dismissal

1. On 3 October 2024, Ms Madison Selim made an application under s. 365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal.  There was contention between the parties about the date of termination. The Respondent raised a jurisdictional objection, that the application was lodged two days after the 21-day time limit. I was therefore required to determine what the date of termination was and if the application was out of time, whether a further period of time to lodge the application should be allowed.

1. I have decided to dismiss Ms Selim’s application for the reasons set out in this decision.

1. On 31 October 2024, Ms Selim’s application was listed for a mention/directions hearing to be held at 9:00am on Friday, 8 November 2024. Ms Selim’s representative, Shop, Distributive & Allied Employees’ Association – Victorian Branch (SDA) advised they would be attending on her behalf.

1. On 8 November 2024, prior to the commencement of the mention/directing hearing, my chambers telephoned Ms Selim to advise that her presence at the hearing was required, this call went unanswered. During the mention/directions hearing the SDA advised that Ms Selim had last contacted them on 6 November 2024 when she cancelled a pre-scheduled meeting due to a family emergency. The representatives had otherwise been unable to communicate with Ms Selim since a telephone conversation on 1 November 2024.

1. On 8 November 2024, I issued Directions requiring Ms Selim to file submissions, witness statements and other materials in support of her application by no later than 4:00pm Friday, 15 November 2024.

1. On 14 November 2024, the SDA sent an email to my chambers advising that they were withdrawing as Ms Selim’s representative in this matter. The SDA informed the Commission that since 8 November 2024 they had made 14 unsuccessful attempts to contact Ms Selim. The unsuccessful attempts were via email, text message, and telephone. The SDA had advised Ms Selim that her failure to respond to their correspondence would impact their ability to represent her and they would have to withdraw representation.

1. On 14 November 2024, an email was sent by my chambers to inform Ms Selim that the SDA had advised the Commission they had ceased to act on her behalf. The email provided that Ms Selim was still required to file her materials in accordance with the directions issued on 8 November 2024. Ms Selim did not file any material in accordance with those directions.

1. On 18 November 2024 at 8:54am, my chambers sent an email requesting that Ms Selim respond to the non-compliance with the 8 November 2024 directions. The email provided a further opportunity for her to file material or advise chambers if she no longer wished to proceed with her application.  No response or material was received from Ms Selim.

1. On 19 November 2024, further correspondence was sent to Ms Selim referring to the further non-compliance. Ms Selim was notified that I was considering whether to dismiss her application pursuant to s. 587 of the Act. Ms Selim was advised that a non-compliance hearing would be listed for 9:00am, 20 November 2024. Ms Selim was directed to inform the Commission by 4:00pm, 19 November 2024 if she intended to proceed with her application.

1. On 19 November 2024, a notice of listing was sent to the parties directing them to attend a non-compliance hearing on 20 November 2024.

1. Prior to the proceeding on 20 November 2024 my chambers attempted to contact Ms Selim by telephone however the call went unanswered. To date, Ms Selim has not responded to any of the Commissions correspondence.

1. The Commission is not limited in the ways in which it may dismiss an application under s. 587(1) of the Act. The Act allows the Commission to dismiss an application on the grounds that it is not made in accordance with the Act[1], is frivolous or vexatious[2], or has no reasonable prospects of success[3]. However, in the context of an application under s.365 the Commission must not dismiss an application for a reason prohibited by s.587(2).

1. The Commission may consider dismissing an application in circumstances where there has been a failure to comply with directions of the Commission or otherwise take steps to prosecute an application. However, such a discretion ought to be exercised with caution having regard to the matters that the Commission is required to take into account in the performance of its functions.[4]

1. For the following reasons I am satisfied that Ms Selim’s conduct engages s.587(1) of the Act. The Commission is required to perform its functions in a manner that is quick, informal and avoids any unnecessary technicalities.[5] Ms Selim has failed to respond to all attempts by this Commission to contact her, and has failed to comply with the directions of this Commission causing unnecessary delays to proceedings. Ms Selim was provided on several occasions the opportunity to progress her application however she has made no attempt to do so. Ms Selim’s reasons for not attending the mention/directions hearing or the non-compliance hearing remain unexplained. Further, Ms Selim has made no attempt to file any materials dealing with the out of time jurisdiction objection. Ms Selim had ceased to engage with her representative and has not advised of any changes to her contact details. I therefore exercise my discretion to dismiss the application in accordance with s.587(1).

1. An Order[6] to this effect will be issued with this decision.

COMMISSIONER

Appearances:

Ms J Kaur for the Respondent

[1] Fair Work Act 2009 (Cth) s. 587(1)(a).

[2] Ibid s. 587(1)(b).

[3] Ibid s.587(1)(c).

[4] Fair Work Act 2009(Cth) ss. 577-578 as well as the objectives of the Act and Parts of the Act.

[5] Fair Work Act 2009 (Cth) s.577(b).

[6] PR781518

Printed by authority of the Commonwealth Government Printer

<PR781516>