Mrs Melisha McIvor v Enterprise Management Group T/A My Pathway, RJCP

[2014] FWC 7324

[2014] FWC 7324

FAIR WORK COMMISSION

DECISION

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

Mrs Melisha McIvor
v
Enterprise Management Group T/A My Pathway, RJCP
(U2014/6500)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 OCTOBER 2014

Summary - failure to prosecute claims - s.587 - defence against the claims - procedural fairness.

[1] The Applicant in this matter, Ms Melisha McIvor, has failed to respond to directions issued on 16 September 2014 to file materials as required for purpose of her application for an unfair dismissal remedy (in relation to her alleged termination by Enterprise Management Group T/A My Pathway, RJCP. The Applicant’s materials had been due on 30 September 2014.

[2] On 1 October 2014, correspondence was directed to the Applicant seeking an explanation for her non-compliance and expressly stating that her application was in jeopardy as a consequence. That correspondence read as follows:

Senior Deputy President Richards notes that as per the directions issued in this matter on 16 September 2014, the Applicant’s material (witness statements and brief outline of submissions) was required to be filed by the Applicant by 5:00pm Tuesday 30 September 2014. These directions were sent to you by email and express post.

His Honour does not appear to have received any material or a request for an extension in relation to the filing of this material. His Honour notes your advice in August that you had a serious illness in your family, but notes that no update has been provided since then.

If this material is not filed by midday on Friday 3 October 2014, it may not be accepted or taken into consideration by His Honour. If late material is provided, please provide a detailed explanation for the delay in filing the material.

If no material or detailed explanation is provided to the Commission (and copied to the Respondent) by midday Friday 3 October 2014, and no settlement negotiations are on foot, then parties are directed to s.399A(1)(b) of the Fair Work Act 2009, as it relates to non-compliance with directions:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

The Respondent would be at liberty in such circumstances to make application under s.399A of the Act. You would of course have an opportunity to be heard in respect of the determination of any such application as made by the Respondent.

In the event I do not hear from you by midday on Friday 3 October 2014 and reach a view that because of this you do not intend to press your application I will dismiss the application under s.587 of the Act, which 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.

[3] The Applicant did not respond to the correspondence by 3 October 2014, or at any time following that.

[4] Further correspondence was directed to the Applicant on 10 October 2014, seeking a response as to the Applicant’s intentions by 13 October 2014. That correspondence read as follows:

In accordance with the directions issued on 16 September, you were required to file material (evidence and a brief outline of submissions) in support of you application by 30 September 2014.

As no material was received by that time, Senior Deputy President Richards sent the below email to you on 1 October, extending the time for you to file this material until 3 October 2014.

His Honour notes that he has still not received any material from you. The time for you to file is now further extended until COB on Monday 13 October 2014.

If no material is received by that time Senior Deputy President Richards will dismiss the application under s.587 of the Act – as referred to and extracted below.

[5] At the time of this correspondence being directed to the Applicant, a message was left on the Applicant’s mobile telephone (as provided in her application) alerting her to the correspondence above.

[6] There has been no response from the Applicant.

[7] In light of the Applicant’s non-responsiveness to these requests, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Fair Work Act 2009, which 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.

[8] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary goes further and suggests it should also only be used ‘sparingly’, which is a different notion altogether- see [2013] FWC 7080 at 39).

[9] That said, s.587 of the Act, I note, does not limit the grounds on which, the Commission can under its own motion, dismiss an application.

[10] In this instance, the Applicant has not indicated any wish to continue to pursue the application she has agitated, despite the Commission’s approaches.

[11] I have indicated at other times that in my view, s.587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. I add that the Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[12] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498,the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):

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.

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.

[13] In this particular case, the employer has provided a very extensive response to the Applicant’s claims by way of its Form F3. The employer, demonstrably, has “a defence of substance” against the claims, or at least “a defence to the action”.

[14] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).

Conclusion

[15] I exercise my discretion in this regard in the knowledge that the Respondent’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute her claims despite being afforded ample opportunity to do so. I dismiss the application for those reasons.

SENIOR DEPUTY PRESIDENT

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