Megan Davis v Anglo American Steel Making Coal Pty Ltd Summary

[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.

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).

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.

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.

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.

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.

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.”

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).

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.

I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Megan Davis v Anglo American Steel Making Coal Pty Ltd, the applicant, Ms Megan Davis, sought an unfair dismissal remedy against her former employer, Anglo American Steel Making Coal Pty Ltd. Ms Davis, who was employed by the respondent from April 2021 until her dismissal on 30 April 2024, filed an application for unfair dismissal under section 394 of the Fair Work Act 2009 on 21 May 2024. The matter was initially listed for staff conciliation on 30 July 2024, which the applicant did not attend. Subsequently, the matter was allocated to Deputy President Lake, who listed it for member assisted conciliation on 13 August 2024, which the applicant also did not attend. Despite multiple communications and warnings, Ms Davis failed to comply with the submission deadlines and did not attend the non-compliance hearing on 11 September 2024.

The legal issues before the court were whether the applicant's failure to attend conciliation and comply with submission deadlines justified dismissing her application under section 587 of the Fair Work Act. Section 587(1) of the Act provides the Fair Work Commission with the power to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court had to determine whether the applicant's non-compliance with the directions constituted a failure to prosecute her application, warranting dismissal under section 587(3)(a) of the Act. The court considered the applicant's multiple missed opportunities to attend hearings and submit required documentation.

Deputy President Lake determined that the applicant's failure to prosecute her application justified dismissal under section 587(3)(a) of the Act. The court noted that the applicant had been given several opportunities to inform Chambers of her circumstances and had failed to do so. The court concluded that Ms Davis was not pressing her unfair dismissal matter and that her application was being dismissed for want of prosecution. The decision was made on the basis that the applicant's non-compliance with the court's directions demonstrated a lack of intent to pursue her claim.

In light of the decision, the Deputy President dismissed Ms Davis's application for an unfair dismissal remedy. The dismissal was made pursuant to section 587(3)(a) of the Fair Work Act, reflecting the court's authority to dismiss an application on its own initiative due to the applicant's failure to prosecute. The court emphasised that the dismissal was a consequence of the applicant's non-attendance at conciliation, failure to submit required documentation, and overall lack of engagement with the proceedings. The dismissal effectively concluded the matter, with no further action to be taken on Ms Davis's application for unfair dismissal.

Megan Davis v Anglo American Steel Making Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established