Ms Holly Thomas v Arabica Coffee Australia Pty Ltd

[2020] FWC 6917

[2020] FWC 6917

FAIR WORK COMMISSION

DECISION

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

Ms Holly Thomas
v
Arabica Coffee Australia Pty Ltd
(U2020/9530)

COMMISSIONER BOOTH BRISBANE, 18 DECEMBER 2020

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

[1] On 13 July 2020, Ms Holly Thomas (the Applicant) applied to the Fair Work Commission (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 Arabica Coffee Australia Pty Ltd (the Respondent).

[2] The matter was listed for conciliation before a Fair Work Commission Conciliator on 4 August 2020 but was unable to be resolved.

[3] The matter was then allocated to my Chambers on 5 August 2020 for determination. I issued Directions for filing of material on 1 September 2020. I also issued a Notice of Listing for a Mention and Conference to be held on 8 September 2020.

[4] On 2 September 2020, Mr Robert Webber of the Respondent sent correspondence to my Chambers advising that he was “away on the road and will only have intermittent reception” and seeking that the conference be adjourned to a date after 24 September 2020. After obtaining the view of the Applicant, I determined that the matter was to remain listed for conference on 8 September 2020. Mr Webber was directed to make arrangements to ensure he was able to attend.

[5] On 8 September 2020, my Associate attempted to contact the Respondent by telephone three times to connect him to the Conference. A voicemail was left requesting an urgent call back. Ms Thomas attended the Conference.

[6] At 3:29 pm on 8 September 2020, correspondence was sent from my Chambers noting the Respondent did not attend the Conference and vacating the Directions issued on 1 September 2020. Amended Directions were issued requiring the Respondent to file its material by 22 September 2020 and the Applicant to file her material by 6 October 2020.

[7] The Respondent failed to file material in accordance with the Amended Directions issued on 8 September 2020. Further correspondence was sent from Chambers noting the Respondent’s failure to comply with Directions of the Commission and extending the timeframe for filing material. The Respondent was directed to file its material by 6 October 2020 and the Applicant was directed to provide her material by 13 October 2020.

[8] The Respondent filed its material on 6 October 2020.

[9] The Applicant failed to file her material by 13 October 2020. Further correspondence was sent from Chambers noting the Applicant’s failure to comply with the amended Directions of the Commission and directing her to provide her material by 20 October 2020.

[10] The Applicant did not file her material by 20 October 2020. My Associate attempted to contact the Applicant by telephone on 21 October 2020, and left a voicemail requesting an urgent call back to advise whether the Applicant intends to file material.

[11] The Applicant did not return Chambers’ phone call, however filed her material on 26 October 2020. The Respondent filed its material in reply on 2 November 2020.

[12] On 24 November 2020, I issued a Notice of Listing for Mention to be held on 7 December 2020. Due to scheduling requirements, the Mention was relisted to be held on 4 December 2020. The parties were notified by email correspondence dated 30 November 2020 and were requested to confirm receipt of the email correspondence.

[13] Chambers did not receive any response from the Applicant confirming receipt of the email correspondence dated 30 November 2020. On 1 December 2020, my Associate contacted the Applicant by telephone. The Applicant advised that she no longer had access to the email address and provided a new email address. My Associate forwarded the correspondence dated 30 November 2020 to the Applicant’s new email address.

[14] On 4 December 2020, my Associate attempted to contact the Applicant by telephone three times to connect her to the Mention. A voicemail was left requesting an urgent call back. Email correspondence was sent to the Applicant at 4:12 pm requesting that she urgently contact Chambers.

[15] At 4:47 pm on 4 December, further correspondence was sent from my Chambers noting the Applicant did not attend the Mention, and directing the Applicant to provide any response regarding whether she still sought to progress her application, in writing to Chambers by 8 December 2020.

[16] On 8 December 2020, my Associate contacted the Applicant by telephone and referred her to the email dated 4 December 2020. The Applicant was again advised that a response was required by close of business, 8 December 2020.

[17] The Applicant did not provide a response.

[18] On 9 December 2020, the Respondent sent correspondence to Chambers, copying in the Applicant, seeking that the Applicant’s application for an unfair dismissal remedy be dismissed.

[19] On 10 December 2020, correspondence was sent directing the Applicant to provide an update by close of business on 11 December 2020. The Applicant was also put on notice that if no correspondence was received, the file may be dismissed under s.587 of the Act. At 2:35 pm on the same day, my Associate attempted to contact the Applicant by telephone. A voicemail was left in which reference was made to the correspondence sent earlier that day.

[20] No further correspondence or telephone contact has been received from the Applicant to date.

[21] 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.”

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

[23] 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

[24] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various correspondence from Chambers. The Applicant has failed to provide any reasonable explanation to the Commission for her failure to comply with directions. The Applicant has shown no willingness to prosecute her case and taken no steps to do so.

[25] 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.

[26] 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

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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].