Ms Joanna Pope v PJ & Ch Beattie Investments Pty Ltd T/A Waterfront Apartments

[2020] FWC 563

[2020] FWC 563

FAIR WORK COMMISSION

DECISION

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

Ms Joanna Pope
v
PJ & CH Beattie Investments Pty Ltd T/A Waterfront Apartments
(U2019/8256)

COMMISSIONER BOOTH BRISBANE, 4 FEBRUARY 2020

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

[1] Ms Joanna Pope (the Applicant) has applied to the Fair Work Commission (the Commissioner) under s. 394 of the Fair Work Act 2009 (the Act) for a remedy, alleging she was unfairly dismissed from her employment with PJ & CH Beattie Pty T/A Waterfront Apartments (the Respondent) on 18 July 2019.

[2] A Form F3 Employer Response was filed by the Respondent, in which the jurisdictional objection was taken that the Applicant was not dismissed.

[3] On 26 August 2019, the matter was listed for conciliation however did not proceed due to the Applicant being uncontactable.

[4] The matter was allocated to my Chambers on 16 September 2019 for further dealing.

[5] On 19 September 2019, formal Directions were issued to the parties for filing of materials in relation to the matter. The Applicant was required to file materials by 4:00 pm, 7 October 2019.

[6] A Notice of Listing was also issued to the parties on 19 September 2019 for a Directions Conference to discuss scheduling matters and potential dates for the arbitration hearing. The Conference was listed for 10:00 am AEST on 4 November 2019.

[7] The Applicant failed to file her material by the directed date.

[8] On 23 October 2019, my Associate attempted to contact the Applicant on her nominated phone number, however, was unsuccessful and left a voicemail. Following this, correspondence from my Chambers was sent to the Applicant, seeking an urgent response from her regarding her failure to file materials within the stipulated timeframe. The Applicant was required to respond by close of business, 25 October 2019, however, no response was received.

[9] The Directions Conference proceeded at the listed time of 10:00 am on 4 November 2019.

[10] My Associate attempted to contact the Applicant on three separate occasions, however, was unsuccessful. My Associate telephoned at 10:04 am and 10:14 am, leaving voicemails instructing the Applicant to contact my Chambers immediately. An attempt was also made to contact the Applicant’s daughter’s listed mobile number on the Form F2 Unfair Dismissal Application at 10:05 am, however this too was unsuccessful.

[11] At 10:34 am on 4 November 2019, after the Applicant failed to attend the conference, correspondence was sent to the Applicant seeking confirmation from her as to whether she wished to continue with her application by 15 November 2019. This correspondence was also sent to the Applicant’s physical address.

[12] Around 1pm on 4 November 2019, the Applicant telephoned my Chambers to advise she had forgotten about the listed conference due to her work commitments. The Applicant also confirmed that her email address on file was correct. My Associate advised the Applicant that correspondence had been sent to her email and physical addresses, and requested that the Applicant respond as a matter of urgency.

[13] On 30 December 2019, after receiving no response from the Applicant, my Chambers sent further correspondence to the Applicant seeking reasons why her application should not be dismissed for failure to comply with Directions from the Commission. The Applicant was required to respond by close of business, 17 January 2020.

[14] No response was received from the Applicant by this time.

[15] 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.”

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

[17] It has been long held by the Courts, Commissions and Tribunals 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 This is because 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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant had failed to respond to a number of attempts made by the Commission to contact her. Further to this, s.587 of the Act does not prescribe a limit on which the Commission may dismiss an application. In this case, the Applicant has demonstrated a persistent unwillingness to properly engage with the Commission by failing to attend a conference in the matter and not responding to correspondence with the Commission in respect to her application and in explaining her absence. In addition, the Applicant has not provided an explanation to the Commission for her failure to comply with directions. The Applicant has therefore shown no willingness to prosecute her case.

[19] The Full Bench in L. Sayer v Melsteel Pty Ltd 3 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.

[20] 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].