Melissa Howard v Mindchamps Early Learning 7 Pty. Limited Summary

[2023] FWC 2275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Melissa Howard
v

Mindchamps Early Learning 7 Pty. Limited

(U2023/5436)

COMMISSIONER MCKINNON

SYDNEY, 7 SEPTEMBER 2023

Application for an unfair dismissal remedy

On 19 June 2023, Ms Melissa Howard applied for an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

The matter was listed for staff conciliation on 20 July 2023. Ms Howard did not attend the staff conciliation.

On 7 August 2023, Directions were issued for the filing of materials. The matter was listed for conciliation before a Member of the Commission on 29 August 2023, and if necessary, for hearing on 19 September 2023. Ms Howard did not file any materials in accordance with the Directions and the Commission’s attempts to contact Ms Howard went unanswered.

On 29 August 2023, there was no appearance for Ms Howard at the conciliation scheduled at 10.00am that day. Ms Howard did not respond to multiple attempts to contact her for the purpose of the conciliation. The same day, I wrote to Ms Howard indicating my preliminary view that the matter should be dismissed under s.587 of the Act. A response was sought by Tuesday, 5 September 2023 but none was provided.

Ms Howard has not taken any reasonable steps to progress her application since it was filed on 19 June 2023. In the circumstances, the appropriate course is to dismiss the application for want of prosecution under s.587 of the Act. The application is dismissed.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Melissa Howard for an unfair dismissal remedy against Mindchamps Early Learning 7 Pty. Limited. Ms Howard lodged her application on 19 June 2023 under section 394 of the Fair Work Act 2009. The Commission had scheduled a staff conciliation for 20 July 2023, which Ms Howard did not attend. Further, she did not adhere to the directions issued on 7 August 2023, which required the filing of materials, and failed to appear for a conciliation meeting on 29 August 2023. The Commission made multiple attempts to contact Ms Howard to address these issues, but these were not answered.

The primary legal issue before the Commission was whether Ms Howard had taken reasonable steps to progress her application since its filing. The Commission examined whether her failure to attend conciliation, file required materials, and respond to communications constituted a lack of reasonable effort to pursue her case. Given the clear directive to file materials and Ms Howard's non-compliance, the Commission had to determine if her application should proceed or be dismissed under section 587 of the Act for want of prosecution.

The Commission found that Ms Howard had not taken any reasonable steps to progress her application. This conclusion was based on her failure to attend the scheduled conciliation, not filing any materials despite the issued directions, and not responding to multiple attempts to contact her for the purpose of the conciliation. Commissioner McKinnon indicated a preliminary view that the matter should be dismissed, and after seeking a response by 5 September 2023, none was provided. Consequently, the Commission dismissed the application under section 587 of the Act for want of prosecution.

Melissa Howard v Mindchamps Early Learning 7 Pty. Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established