McLeod v Kulgera Trading Company Pty Ltd

[2014] FWC 2112

[2014] FWC 2112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

McLeod
v
Kulgera Trading Company Pty Ltd
(C2014/2560)

VICE PRESIDENT CATANZARITI SYDNEY, 31 MARCH 2014

Application to deal with contraventions involving dismissal - dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 6 January 2014, Ms Suzanne McLeod (Ms McLeod) submitted an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Ms McLeod commenced employment with Kulgera Trading Company Pty Ltd (the Respondent) on 2 August 2013, and was dismissed in December 2013.

[2] This matter was initially listed for a conference to be heard by video link between the Sydney and Darwin offices of the Fair Work Commission on 21 January 2014. On 9 January 2014, the parties were sent a Notice of Listing advising them of this. On 15 January 2014, however, the parties were sent a revised Notice of Listing informing them that the matter was now listed for a teleconference on the same date and time as the initial listing, and thus there was no need to attend the Fair Work Commission in Darwin.

[3] On the day of the hearing, my associate contacted Ms McLeod on the mobile number she had provided in her application in order to connect her to the teleconference. Ms McLeod informed my associate that she was not aware of the day’s proceedings, and was not available to participate due to prior engagements. My associate asked Ms McLeod whether she had received the Notices of Listing which had been sent to the fax number provided in her application, and Ms McLeod responded that the fax number that she provided in her application did not belong to her, but an acquaintance of hers. My associate asked Ms McLeod the best way to get in touch with her, to which Ms McLeod responded that the email address that she had provided in her application was the best means of contact.

[4] Following this, I scheduled another teleconference for Monday 3 February 2014. On 21 January 2014, a Notice of Listing was sent to both parties, Ms McLeod’s being sent to the email address listed on her application. On Monday 3 February 2014, Ms McLeod did not answer her mobile phone at the time of the listed teleconference. My associate left multiple voicemail messages asking Ms McLeod to get in touch with the commission and sent her an email advising her that the Vice President was attempting to convene a teleconference, but Ms McLeod made no contact with the Commission.

[5] On 3 February 2014, following Ms McLeod’s absence from the scheduled teleconference, an email was sent to Ms McLeod and copied to the Respondent requesting that she inform me of her intentions with respect to continuing her claim. Ms McLeod was informed that if no response was received before 7 February 2014, I would begin considering whether or not to dismiss her application pursuant to s.587 of the Fair Work Act 2009. Ms McLeod did not respond to this email.

[6] On 17 February 2014 another email was sent to Ms McLeod with the Respondent copied in informing her that if she did not contact the Commission prior to Monday 24 February 2014, I would begin the process of determining whether or not to dismiss her application. Ms McLeod did not respond to this email.

[7] On 20 March 2014 an email was sent to Mr Reg Phillips of the Respondent with a copy to Ms McLeod. The Respondent was informed that it was my intention to dismiss Ms McLeod’s application, and that I sought the Respondent’s views on the matter. The Respondent was informed that if I did not hear from it prior to close of business Monday 24 March I would, consistent with my previous indications, proceed with my intention to issue a decision dismissing Ms McLeod’s application. No response was received from either the Respondent or Ms McLeod.

Legislative Provisions

[8] 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.”

[9] In Rebecca Tomas v Symbion Health [2011] FWA 5458, Commissioner Gooley (as she then was) 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 (c) 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.”

Consideration

[10] As Ms McLeod has not responded to the Commission’s repeated attempts to get in contact with her, and in light of her non-appearance at the teleconference listed for 3 February 2014, 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 Ms McLeod’s non-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that Ms McLeod does not seem to have any intention of following through. Further, in taking into account fairness, justice, equity and good conscience I find that Ms McLeod has been given ample opportunity to make contact with the Commission, but has failed to do so.

[11] While the Respondent has not made an application seeking that Ms McLeod’s application be dismissed I have, on my own initiative pursuant to s.587(3)(a) of the Act, found that the application should be dismissed. I order accordingly.

ORDER

1. The application lodged by Ms McLeod under s.365 of the Fair Work Act 2009 on 6 January 2014 is dismissed pursuant to s.587 of the Fair Work Act 2009.

VICE PRESIDENT

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