Michelle Singles v Beaver Air Conditioning Service Pty Ltd as Trustee for Beaver Unit Trust T/A Beaver Air Conditioning Service

[2015] FWC 822

[2015] FWC 822

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michelle Singles
v
Beaver Air Conditioning Service Pty Ltd as Trustee for Beaver Unit Trust T/A Beaver Air Conditioning Service
(C2014/1350)

COMMISSIONER STANTON NEWCASTLE, 3 FEBRUARY 2015

Application to deal with contraventions involving dismissal - general protections - jurisdictional objections raised - application made outside of the time prescribed by s.366 (1)(a) - applicant independent contractor - repeated non-compliance with directions for arbitration of jurisdictional objection - s.587 Fair Work Act - application dismissed.

[1] On 29 July 2014, Ms Michelle Singles (the applicant) made application to the Fair Work Commission (the Commission) to deal with a general protections dispute in which she alleged that she had been dismissed in contravention of Part 3-1 General Protections of the Fair Work Act 2009 (the Act).

[2] The application is made pursuant to s.365 of the Act.

[3] The application states that at the time of the alleged contravention, the applicant was an independent contractor.

[4] The applicant alleges that she was dismissed in contravention of Part 3-1 of the Act by Beaver Air Conditioning Service Pty Ltd as Trustee for Beaver Unit Trust trading as Beaver Air Conditioning Service (the respondent).

[5] The respondent objected to the application on jurisdictional grounds. First, the application was made 13 days late and without any explanation for that delay. Second, as an independent contractor, the applicant was not entitled to the protection afforded by s.341(c) of the Act nor the remedy sought, which included payment in lieu of notice.

[6] The respondent contended it terminated a contract with the applicant’s service company, For Loving Memories Pty Ltd, due to her inability to work cooperatively with its administrative staff.

[7] Directions concerning the arbitration of the jurisdictional objections were made on 21 November 2014. The respondent was required to file and serve all relevant materials and submissions it proposed to rely upon by no later than 5 December 2014. The applicant was required to file her response by no later than 19 December 2014.

[8] Through its solicitors, the respondent complied with the directions on 5 December 2014.

[9] On 11 December 2014 the applicant informed the Commission by email that her solicitors, Dooley and Associates had requested significant funds to file relevant materials by 19 December 2014. The applicant subsequently sought an extension to file by “mid January 2015” for the purpose of retaining alternate legal representation. The applicant was advised by email on 11 December 2014 of the requirement to file her reply by 4:00pm on 16 January 2015. The applicant failed to comply with the 16 January 2015 deadline. She also failed to advise the Commission the reasons for her non-compliance.

[10] On 19 January 2015, the Commission contacted the applicant concerning her non-compliance with the directions for arbitration. The applicant subsequently advised the Commission by email that she had proposed to meet with Turner Freeman Lawyers on 15 December 2015. However, that meeting was averted due to the Lindt Cafe Seige which caused much of central Sydney to be “locked down.” Moreover, no advice has been received from Turner Freeman Lawyers to the effect that they have been retained by the applicant or, the reasons why there is a delay with compliance.

[11] The applicant’s email response on 19 January 2015 also stated that she had attempted to contact her solicitor at Turner Freeman Lawyers and that part of the problem appeared to be the delay by Dooley and Associates to forward her files to Turner Freeman. The applicant also stated she was on holidays with her children and would not be available to sign relevant documents prior to the start of the 2015 school year.

[12] On 27 January 2015, the Commission wrote to the applicant to advise her that she was required to comply with the directions for arbitration by 12:00 noon on 30 January 2015 and, in the event of her non-compliance, the application may be dismissed pursuant to s.587 of the Act:

Please be advised that you are now directed to file submissions and witness statements by 12:00noon on Friday, 30 January 2015 in response to the jurisdictional argument raised by the respondent. Given this is the second extension granted to you to file your documentation, non-compliance with these directions may result in your application being dismissed pursuant to s.587 of the Fair Work Act 2009 for want of prosecution. Compliance with these directions is mandatory and is designed to ensure cases proceed in a timely manner with minimum costs and inconvenience to parties.

[13] The application stated the applicant preferred the Commission to communicate with her via post. Notwithstanding that election, all notifications from the Commission have been directed to the applicant’s email address as provided by her and her communications with the Commission following the filing of her application have exclusively been by email. The applicant’s final communication with the Commission by email was on 20 January 2015 when she advised that she had contacted Turner Freeman Lawyers and was waiting for a return phone call.

[14] The power to dismiss an application should only be used cautiously. Section 587 of the Act gives power to the Commission to dismiss an application. The basis for dismissing an application is not limited to those matters specified in s.587(1)(a)-(c):

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.

Conclusion

[15] The applicant has failed to comply with the directions issued by the Commission on 21 November 2014 despite advice given to her on 27 January 2015 that her failure to comply may result in her application being dismissed. Accordingly, I hereby dismiss the application for want of prosecution pursuant to s.587 (3)(a) of the Act. An order to this effect will be issued simultaneously with this decision.

COMMISSIONER

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