Ms Courtnry Burls v The Trustee for McAdam Family Trust - [2022] FWC 3154

[2022] FWC 3154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Courtnry Burls
v

The Trustee for McAdam Family Trust

(C2022/5585)

COMMISSIONER WILSON

MELBOURNE, 29 NOVEMBER 2022

Application to deal with contraventions involving dismissal – dismissed pursuant to s.587 of the Fair Work Act 2009

Background

On 9 August 2022 Ms Courtnry Burls (the Applicant) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging the Trustee for McAdam Family Trust (the Respondent) contravened the general protection provisions of the FW Act.

On 26 August 2022 the Respondent filed an F8A Employer Response with the FWC raising no jurisdictional objection the Application.

On 18 August 2022 the Applicant was sent a Notice of Listing advising that a conference was scheduled before a staff conciliator of the FWC on at 9:15AM on 30 September 2022. On 29 September 2022 at 5:45PM the Applicant sent an email to the FWC requesting “that tomorrow’s conciliation be rescheduled due to the fact I have to work. Sunday or Monday would be a better option since I am not working those days.”

Having not granted the adjournment request, at the scheduled conciliation time the staff conciliator attempted to contact the Applicant by phone and email, with no response. On 4 October 2022, the Applicant was sent a Notice of Listing advising the conference was rescheduled for 31 October 2022 at 1:15PM. On 25 October, a letter was sent to the Applicant requesting the contact number which she wished to use for the conference be confirmed. On 26 October, a call was made to the Applicant to seek this information. As there was no response, a message was left noting the information sought.

On 31 October the staff conciliator made two calls to the Applicant but was unable to make contact. Due to this the conference before a staff conciliator was unable to take place.

Following referral to Commissioner Wilson, on 3 November an email was sent to the parties advising the following, “the Commissioner is not prepared to issue the s.368(3)(a) certificate and, in the absence of any further contact from the Applicant will give consideration to close the file as a result of that lack of contact.” Since this time, the Applicant has made no contact with the Commission regarding this matter.

Legislative Provisions

Section 587 of the FW 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),…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms Courtnry Burls v The Trustee for McAdam Family Trust

Details

AGLC: Ms Courtnry Burls v The Trustee for McAdam Family Trust [2022] FWC 3154
Case: [2022] FWC 3154
Decision Date: 29 NOVEMBER 2022

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application filed by Ms Courtnry Burls against the Trustee for McAdam Family Trust, alleging contravention of the general protection provisions of the Fair Work Act 2009. The case was initiated on 9 August 2022, with the Respondent not raising any jurisdictional objections to the application on 26 August 2022. Despite the Applicant being notified of scheduled conferences, she failed to appear or respond to attempts to contact her, leading to the dismissal of the scheduled conferences. The Commission attempted to reschedule the conference but, due to the Applicant's lack of response, the matter was ultimately dismissed.

The legal issues in this case centred on the dismissal of the Applicant's application under section 587 of the Fair Work Act 2009. The Act allows the Fair Work Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission also has the discretion to dismiss an application on its own initiative. The Applicant's failure to participate in the Commission's processes and respond to attempts to contact her raised questions about the fairness and equity of allowing the application to proceed, particularly in light of the resources the Respondent had expended in responding to the claim.

The Commission found that the Applicant's non-participation in the processes and her failure to respond to contact attempts justified the dismissal of her application. The principle of a fair go all round to both employers and employees, along with considerations of fairness, justice, equity, and good conscience, led the Commissioner to conclude that the Applicant had been given ample opportunity to engage with the Commission but had chosen not to do so. Consequently, the Commissioner dismissed the application on his own initiative under section 587(3)(a) of the Act.

The Fair Work Commission dismissed the application filed by Ms Courtnry Burls against the Trustee for McAdam Family Trust. The Commissioner found that the Applicant's failure to engage with the Commission's processes, despite being given multiple opportunities to do so, justified the dismissal of the application. The decision reflects the importance of fairness, equity, and good conscience in the administration of the Fair Work Act, ensuring that both parties are treated justly in employment-related disputes.

Orders