Mrs Yu-Fan Lin v Task Labour Australian Pty Ltd T/A Task Labour Australian Pty Ltd

[2020] FWC 2415

[2020] FWC 2415

FAIR WORK COMMISSION

DECISION

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

Mrs Yu-Fan Lin
v
Task Labour Australian Pty Ltd T/A Task Labour Australian Pty Ltd
(U2019/13559)

COMMISSIONER BOOTH BRISBANE, 7 MAY 2020

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

[1] On 3 December 2019, Mrs Yu-Fan Lin (the Applicant) applied to the Commission under s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Task Labour Australian Pty Ltd (the Respondent). The Applicant stated she was employed by the Respondent from 31 December 2018 until her dismissal took effect on 29 November 2019.

[2] The matter proceeded to a face to face conciliation conference which was held at the Brisbane offices of the Commission before a Fair Work Commission staff conciliator, but was not resolved. On 24 February 2020, the conciliator sent an email to Mrs Lin asking her to confirm whether she intended to proceed to arbitration. Mrs Lin replied on 25 February 2020 and said she wanted to continue her claim.

[3] The matter was referred to my Chambers for determination. I issued directions for filing of material on 11 March 2020. Mrs Lin was directed to file an outline of submissions in support of her application as well as any witness statements or documentary material Mrs Lin intended to rely on by no later than 31 March 2020. I also issued a Notice of Listing for a conference to be held on 24 April 2020.

[4] Mrs Lin did not comply with these directions. No material was received from Mrs Lin. On 1 April 2020, my Associate sent an email to Mrs Lin advising that she had failed to comply with directions (which were attached) and directing her to file by close of business on 2 April, and to provide reasons for the delay in filing and whether she still intended to file the material or whether the file in this matter should be closed.

[5] Mrs Lin did not reply to this email or contact Chambers. On 6 April 2020, all parties to the matter including Mrs Lin were sent further correspondence from my Chambers advising that Mrs Lin was directed to respond by2 April regarding the overdue material, and that this response was not provided. The correspondence said that in light of the Covid-19 epidemic and potential issues around preparation of material, Mrs Lin was allowed a further and final period in which to file her material. Mrs Lin was directed to file the relevantmaterial by close of business 13 April. The correspondence noted that “if the Applicant does not file by this date, the Commissioner will give consideration to drafting a decision to dismiss the matter.”

[6] A correction email was sent on 14 April in response to an enquiry from the Respondent. The correction email noted that 13 April 2020 was a public holiday and advising that Mrs Lin had until close of business on 14 April to provide a response to Chambers and file her material.

[7] Mrs Lin did not provide a response or file material in accordance with my directions. On 17 April, my Associate attempted to contact the number provided by the Applicant in her Form F2 but was unsuccessful and left a voice mail requesting Mrs Lin contact Chambers.

[8] Following this, correspondence from my Chambers was sent to the Applicant at 3:25pm. The correspondence noted that I had reviewed the file and determined that in light of the unusual circumstances and restrictions surrounding the Covid-19 epidemic, the conference would remain as listed on 24 April 2020 and would be used to discuss the matter and issues surrounding Mrs Lin’s failure to file materials. The correspondence noted that if the Applicant did not attend, the matter will then be dismissed. The correspondence advised that an interpreter would be made available at the conference for Mrs Lin if required and asked her to confirm her attendance and whether or not she required an interpreter.

[9] On 24 April 2020, my Associate made multiple attempts to contact the Applicant on the private number previously provided on the Form F2, however was unsuccessful and left voicemails. Following this, correspondence from my Chambers was sent to parties advising the conference would not proceed.

[10] No response has been received from the Applicant to date.

[11] 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.”

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

[13] I note 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 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

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mrs Lin has failed to respond to attempts to contact her on multiple occasions. Section 587 of the Act does not prescribe a limit on which the Commission may dismiss an application. Mrs Lin has failed to file any material in the matter beyond her initial Form F2. Mrs Lin has further failed to contact my Chambers at any time to provide an explanation to the Commission for her failure to comply with directions. Mrs Lin has shown no willingness to prosecute her case and taken no steps to do so.

[15] In light of the unusual global situation the Covid-19 epidemic has caused, I provided Mrs Lin numerous extensions to the dates required for filing material. Mrs Lin failed to respond to any of the many directions to provide a response. Mrs Lin was not available to be contacted by telephone or email.

[16] In L. Sayer v Melsteel Pty Ltd, 3 the Full Bench 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

Printed by authority of the Commonwealth Government Printer

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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].