Megan Davis v Anglo American Steel Making Coal Pty Ltd

[2024] FWC 2478

[2024] FWC 2478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Megan Davis
v

Anglo American Steel Making Coal Pty Ltd

(U2024/5780)

DEPUTY PRESIDENT LAKE BRISBANE, 12 SEPTEMBER 2024

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

1. Ms Megan Davis (the Applicant) was employed by Anglo American Steel Making Coal Pty Ltd (the Respondent) around April 2021 until she was dismissed on 30 April 2024. On 21 May 2024, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The matter was listed for staff conciliation on 30 July 2024. The Applicant did not attend the conciliation. The matter was then allocated to me.

1. On 13 August 2024, I listed the matter for member assisted conciliation. The Applicant responded she would not attend the conciliation via email. The Applicant was sent an email by my Chambers that if she did not file her submissions in accordance with Directions, her application may be dismissed. The Applicant also contacted the Commission on this date stating that she was dissatisfied with her representation and was looking for new representation.

1. The Applicant’s submissions were due on 29 August 2024. These submissions were not received. An email was sent by my Associate that the application may be dismissed under s.587 of the Act if the Applicant did not comply with Directions. The Applicant was given an opportunity to provide reasons for the delay. The Applicant did not provide a response.

1. The matter was then listed for non-compliance hearing on 11 September 2024. The Applicant did not attend this hearing and has been given multiple opportunities to inform Chambers of her circumstances. No response has been received to date.

1. 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.

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, or an application under s527F that does not consist solely of an application for a stop sexual harassment order 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.”

1. The words, “without limiting when FWC may dismiss an application” under s.587(1) of the Act establishes that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act as the Applicant is not pressing her unfair dismissal matter.

1. I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR779172>