Milagros D'Silva v Savino Del Bene Australia Pty Ltd T/A Savino Del Bene Australia Pty Ltd
[2023] FWC 799
•6 APRIL 2023
| [2023] FWC 799 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Milagros D’Silva
v
Savino Del Bene Australia Pty Ltd T/A Savino Del Bene Australia Pty Ltd
(C2023/1601)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 6 APRIL 2023 |
Application to deal with a dispute – application dismissed.
On 24 March 2023, Ms Milagros D’Silva (applicant) made an application under s.739 of Fair Work Act 2009 to deal with a dispute in accordance with a dispute settlement procedure (the Act).
Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.
Rule 8 of the Fair Work Commission Rules 2013 (FWC Rules) provides, inter alia, that if the President approves a form for a particular purpose, then subject to the FWC Rules, the approved form must be used for that purpose.
The approved form for an application under s.739 is the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10).
Rule 36(3) of the FWC Rules provides that such an application must be accompanied by the term referred to in s.738 of the Act under which the Commission is required or allowed to deal with the dispute.
The application was made with a Form F10, but it was incomplete. For example, the Form F10 did not detail the clause within the industrial instrument or other written agreement containing the dispute resolution procedure relevant to the application, or the clause within the industrial instrument the dispute was related to. It also did not comply with Rule 36(3) of the FWC Rules.
Context
On 24 March 2023, an outbound call was made by the Commission to Ms D’Silva’s nominated telephone number, leaving a voicemail informing her that the F10 lodged by her had missing and incomplete information. This was followed up by an email which stated that Ms D’Silva had until 28 March 2023 to provide the requested information, failing which the application may be dismissed.
An SMS notification was also sent to Ms D’Silva on 24 March 2023. The SMS advised her to take action in compliance with the email from the Commission regarding her incomplete application.
The Form F10 listed Mr Paul Cott from Law on Lydiard Lawyers, as the Applicant’s representative. The Commission contacted Mr Cott on 24 March 2023. Mr Cott advised that he was unaware that Ms D’Silva had put his name down as representative, but that he would follow up with Ms D’Silva. Mr Cott also proffered that he did not think the application has merit because of the lack of a dispute procedure in Ms D’Silva’s contract.
On 27 March 2023, the Commission received a call from Ms D’Silva, she inquired when the application was due and was advised to seek advice from her representative or the Fair Work Ombudsman to determine whether her employment falls under an Enterprise Agreement or Modern Award, or whether there is a clause in her contract that can be considered a dispute resolution clause. Ms D’Silva advised that she would be meeting with her representative on 28 March 2023 and she would advise the Commission of her intentions for the application. Ms D’Silva was again advised that her application may be dismissed as incomplete if she did not provide an amended Form F10. This advice was reiterated to Ms D’Silva in an email and a SMS notification, sent on 28 March 2023. The correspondence provided as follows:
“If we don’t receive your completed application by Wednesday 29 March 2023, your case is very likely to be dismissed.”
On 29 March 2023, the Commission made a final call to Ms D’Silva, leaving a voicemail requesting that Ms D’Silva call the Commission back.
To date, Ms D’Silva has not responded to the Commission’s latest correspondence, nor made any contact with the Commission.
Legislative framework
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.
…
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.
As outlined above, the application has not been made in accordance with the FWC Rules. Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative. It may be noted, for example, that the Full Bench of the Commission in Sayer v Melsteel Pty Ltd[1] held that s.587(1) provides for the dismissal of a matter without examining the merits where the applicant has failed to prosecute their case.
Ms D’Silva has taken no action to respond to the attempts made by the Commission on multiple occasions to contact her. The Form F10 remains incomplete and there has been non-compliance with Rule 36(3). In these circumstances, I have concluded the Ms D’Silva does not wish to pursue the application.
Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss the Ms D’Silva’s application. An Order[2] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] [2011] FWAFB 7498 at [19].
[2] PR760812.
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