Miss Amanda Teichel v Roshan Transport T/A Courier Contractor

[2019] FWC 8546

[2019] FWC 8546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Amanda Teichel
v
Roshan Transport T/A Courier Contractor
(U2019/2448)

COMMISSIONER BOOTH BRISBANE, 18 DECEMBER 2019

Application for an unfair dismissal remedy – application dismissed under s.587.

[1] Ms Amanda Teichel (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging she was unfairly dismissed from her employment with Roshan Transport Pty Ltd T/A Courier Contractor (the Respondent) on 21 February 2019.

[2] On 13 May 2019, the matter was listed for conciliation however the matter did not resolve.

[3] On 31 May 2019, a notice of listing was issued by my Chambers for a further telephone conference to be held on 14 June 2019. The Respondent was directed to file a Form F3 Employer Response by 7 June 2019.

[4] On 31 May 2019, the Respondent sent email correspondence to my Chambers indicating it objected to the Applicant’s application, and raising and number of concerns regarding further progress of the matter. Further to such, the conference scheduled for June 14 2019 was vacated and the matter relisted for a Directions Conference by telephone on 21 June 2019.

[5] On 20 June 2019, the Respondent filed its Form F3 Employer Response. It raised two jurisdictional objections, that the Applicant was not an employee and was not dismissed.

[6] The directions conference proceeded on 21 June 2019, further to which various correspondence was exchanged between the parties with a view to resolving the matter.

[7] As the matter was unable to be resolved between the parties, it was listed for a further telephone conference on 13 September 2019.

[8] The Applicant failed to attend the 13 September 2019 conference.

[9] On 16 September 2019, a letter was sent by email to the parties, regarding failure to attend the conference of 13 September 2019. The Applicant was directed to respond by 19 September 2019, as to whether she wished to continue with her application or alternatively that she file a Notice of Discontinuance.

[10] The Commission did not receive a response to this correspondence.

[11] On 2 October 2019, further correspondence was sent to the Applicant indicating that no response was received in relation to the letter sent on 16 September 2019. The Applicant was further directed to provide a response by 11 October 2019, as to why her application should not be dismissed. The Commission did not receive a response.

[12] 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.

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.”

[13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[14] It has been long held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 This is because such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.2

[15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant had failed to respond to numerous attempts made by the Commission to contact her. Further to this, s.587 of the Act does not prescribe a limit on which the Commission may dismiss an application. In this case, the Applicant has demonstrated a persistent unwillingness to properly engage with the Commission by failing to attend a conference in the matter and not responding to correspondence with the Commission in respect to her application and in explaining her absence. In addition, the Applicant has not provided an explanation to the Commission for her failure to comply with directions. The Applicant has therefore shown no willingness to prosecute her case.

[16] The Full Bench in L. Sayer v Melsteel Pty Ltd 3 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[17] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for want of prosecution. An Order to this effect will issue accordingly.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2011] FWAFB 7498 at [19].