Miss Tegan Jensen v Greater South East Projects Pty Ltd T/A Red Rooster

[2014] FWC 4975

[2014] FWC 4975

FAIR WORK COMMISSION

DECISION

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

Miss Tegan Jensen
v
Greater South East Projects Pty Ltd T/A Red Rooster
(U2014/709)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 JULY 2014

Application for relief from unfair dismissal - application dismissed.

[1] This matter concerns an application by Ms Tegan Jensen under s.394 of the Fair Work Act 2009 (“the Act”). Ms Jensen sought an unfair dismissal remedy in relation to her alleged dismissal by her former employer, Greater South East Projects T/A Red Rooster (“the employer”).

[2] Upon being allocated to the file I had cause (on 7 July 2014) to direct the following correspondence by e-mail to Ms Jensen:

Dear Ms Jensen

I refer to the above matter, which has been referred to Senior Deputy President Richards for arbitration.

His Honour notes that the application has previously been listed for conciliation on two separate occasions, and that you failed to attend the telephone conciliations on both those occasions.

Prior to listing this matter again, His Honour asks whether you intend to pursue this application?

Please advise by COB on Thursday 10 July 2014. If no advice is received by this time, the application may be dismissed under s.587 of the Fair Work Act 2009:

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.

...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Kind regards

[3] No response to the above correspondence was received at the time of this decision (24 July 2014).

[4] The correspondence was directed to the e-mail address that the Applicant provided in her application. There is no indication that the e-mail address was inaccurate. Ms Jensen has not advised that she has changed e-mail address. Ms Jensen previously contacted the Commission via the e-mail address, in response to correspondence sent from the Commission to that e-mail address.

[5] I have examined the employer’s defence, as it is put in summary. The employer contends that Ms Jensen resigned her employment as at 7 March 2014. The employer, thus, is not without a claim in its defence.

[6] The relevance of identifying at least a nominal defence against the claims was identified as being a prudent approach by the Full Bench in L. Sayer v Melsteel Pty Ltd[2011] FWAFB 7498:

[16] When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

[17] It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner’s decision is consistent with that approach.

[7] Given the circumstances of this matter I am of the view that the application should be dismissed pursuant to s.587 of the Act for reason of want of prosecution.

[8] An order to this effect will issue at the same time as this decision.

SENIOR DEPUTY PRESIDENT

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