Ms Hannah Phelan v Rainbow Power Company Ltd

[2024] FWC 2812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Hannah Phelan
v

Rainbow Power Company Ltd

(U2024/5624)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2024

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 22 May 2024, Ms Hannah Phelan filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 4 September 2024 however Ms Phelan did not attend.

After multiple attempts to contact Ms Phelan on 4 September 2024, correspondence was sent to Ms Phelan in relation to her non-attendance and was informed that the matter will be referred to a Fair Work Commission Member.

To date, Ms Phelan has not responded to any of the Commission’s attempts to contact her.

Section 587 of the Act provides:

“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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Further information was sought on 12 September from Ms Phelan about whether she wishes to continue her claim

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Ms Phelan has been on notice of the likely consequences of her application if she does not respond.

In the circumstances I have decided to dismiss Ms Phelan’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR780084).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Hannah Phelan filed an application for an unfair dismissal remedy against Rainbow Power Company Ltd, which was dismissed by the Fair Work Commission (FWC). The application was lodged under section 394 of the Fair Work Act 2009 and was scheduled for a conciliation conference on 4 September 2024, which Ms Phelan did not attend. Despite multiple attempts to contact her and subsequent correspondence, she did not respond to the Commission’s attempts to contact her. Under section 587 of the Act, the FWC has the authority to dismiss an application if it appears that the applicant has ceased to pursue or participate in the proceedings they initiated. The Commission found that Ms Phelan’s lack of response and participation led to the dismissal of her application.

The primary legal issue the Commission had to address was whether Ms Phelan’s application could be dismissed under section 587(1)(c) of the Act for lack of prosecution. This section allows the FWC to dismiss an application if it has no reasonable prospects of success. The Commission considered that Ms Phelan’s non-attendance at the conciliation conference and her failure to respond to the Commission’s attempts to contact her indicated that she had abandoned her claim. The Court held that section 587(1) of the Act, which states that the FWC’s jurisdiction to dismiss an application is not limited to the circumstances listed in subsections (a), (b), and (c), provided the authority for the dismissal.

Deputy President Easton decided to dismiss Ms Phelan’s application on the Commission’s own initiative for lack of prosecution, under section 587(3)(a) of the Act. The decision was based on Ms Phelan’s non-participation and failure to respond to the Commission’s communications. The Deputy President found that Ms Phelan had been on notice of the potential consequences of her inaction and that the Commission was not required to persevere with the application. Consequently, the Commission dismissed the application and issued an order to that effect (PR780084).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established