Ms Courtnry Burls v The Trustee for McAdam Family Trust
[2022] FWC 3154
•29 NOVEMBER 2022
| [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), 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.”
In Stewart v Enable Western Australia,[1] Deputy President Binet provided a relevant analysis of the applicability of this section to this instance, as follows:
“[8] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss dismissing an application made pursuant to section 365 per se.
[9] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.
[10] For example, in Mcleod v Kulgera Trading Company Pty Ltd,[2] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.
[11] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[3] in which she stated:‘[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.’”
Consideration
As the Applicant has not responded to the Commission’s repeated attempts to get in contact with her, and in light of her non-appearance at the conferences listed for 30 September and 31 October, I have decided to dismiss her application. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that she does not seem to have any intention of following through. Further, in taking into account fairness, justice, equity and good conscience I find that the Applicant has been given ample opportunity to make contact with the Commission, but has failed to do so.
While the Respondent has not made an application seeking that Ms McLeod’s application be dismissed I have, on my own initiative pursuant to s.587(3)(a) of the Act, found that the application should be dismissed. I order accordingly.
COMMISSIONER
[1] [2022] FWC 2238.
[2] [2014] FWC 2112.
[3] [2011] FWA 5458.
Printed by authority of the Commonwealth Government Printer
<PR748379>
0
0
0