Mari Helen Reginauldpaul v Ventia Australia Pty Ltd Summary

[2022] FWC 779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mari Helen Reginauldpaul
v

Ventia Australia Pty Ltd

(U2022/222)

DEPUTY PRESIDENT BOYCE

SYDNEY, 7 APRIL 2022

Application for an unfair dismissal remedy

Background

On 3 January 2022, Mrs Mari Helen Reginauldpaul (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). Mrs Reginauldpaul commenced employment with Ventia Australia Pty Ltd (Respondent) on 1 July 2011 and was dismissed on14 December 2021.

On 6 January 2022, the matter was allocated to the Commission’s staff conciliation unit. On 9 February 2022, a notice of listing was dispatched to the parties regarding the staff conciliation on 2 March 2022. The Applicant did not appear for the staff conciliation. The staff conciliator attempted to call the Applicant regarding the staff conciliation on five occasions, leaving three voicemails, however the Applicant was unresponsive.

The matter was allocated to my Chambers on 16 March 2022. A notice of listing and directions were issued to the parties on 17 March 2022, with the matter listed for Hearing to deal with the Application on 27 April 2022.

Orders [2] of the Directions issued 17 March 2022 read as follows:

“[2] By 4.00pm AEDT on Thursday, 31 March 2022, the Applicant must file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of her Application.”

Chambers received no correspondence from the Applicant in compliance with Order [2].

On Tuesday, 5 April 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further a direction for the Applicant to:

“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Tomorrow, 6 April 2022”

The Applicant was notified in the Show Cause Email that “If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

Legislative Provisions

“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.”

In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]

Consideration

As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting her case, or to explain her non-compliance with directions, I have decided to dismiss her Application.

In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute her case, and/or contact the Commission to explain her non-compliance, but has instead expressed a clear disinterest in process and procedure. Accordingly, pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An order dismissing the Application will be published with this decision.

DEPUTY PRESIDENT

[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

Printed by authority of the Commonwealth Government Printer

In the matter of Mari Helen Reginauldpaul v Ventia Australia Pty Ltd, the applicant filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The applicant, Mari Helen Reginauldpaul, had been employed by Ventia Australia Pty Ltd since 1 July 2011 and was dismissed on 14 December 2021. The applicant sought to have the dismissal deemed unfair. The case was initially allocated to the Commission’s staff conciliation unit but did not proceed as the applicant failed to appear or respond to communications. The matter was subsequently allocated to the Fair Work Commission, and the applicant was directed to file and serve submissions and evidence, as well as to explain non-compliance with directions. The applicant did not comply with these directions.

The central legal issue before the Fair Work Commission was whether the applicant's failure to comply with procedural directions warranted the dismissal of her application for an unfair dismissal remedy. The Commission considered whether the dismissal of the application was justified under section 587 of the Fair Work Act 2009. The applicant's lack of compliance with the procedural directions, despite multiple opportunities to explain or rectify the non-compliance, led to the question of whether the application should be dismissed for want of prosecution.

The Fair Work Commission, Deputy President Boyce, dismissed the application based on the applicant's persistent non-compliance with procedural directions. The Deputy President noted that the principle of affording a fair go to both employers and employees required the Commission to ensure that the employer's case was not prejudiced by the applicant's actions. Additionally, the Deputy President considered the fairness, justice, equity, and good conscience in determining that the applicant had been provided ample opportunities to prosecute her case but had shown a clear disinterest in doing so. Consequently, the application was dismissed pursuant to section 587(3)(a) of the Act for want of prosecution.

The final orders of the Commission were that the application for an unfair dismissal remedy was dismissed, and an order dismissing the application was to be published with the decision. This outcome reflects the importance of procedural compliance in the Fair Work Commission and the consequences that may arise from a failure to adhere to such requirements.

Mari Helen Reginauldpaul v Ventia Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established