Ms Jodie-Lee Molloy v Oceania Aviation Services Pty Ltd T/A Oceania Aviation

[2019] FWC 5155

[2019] FWC 5155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Jodie-Lee Molloy
v
Oceania Aviation Services Pty Ltd T/A Oceania Aviation
(C2019/3130)

DEPUTY PRESIDENT CROSS SYDNEY, 30 JULY 2019

Application to deal with contraventions involving dismissal – failure to attend Commission proceedings – no explanation and no contact with the Commission – failure to prosecute the case – application dismissed.

[1] On 17 May, 2019, Ms Jodie-Lee Ann Molloy (the “Applicant”) made an application to deal with contraventions involving dismissal, pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was due to commence employment with Oceania Aviation Services Pty Ltd T/A Oceania Aviation (“Oceania Aviation”) on 20 May, 2019, but she was notified on 17 May, 2019, that her role was longer available.

[2] On 23 October, 2018, Oceania Aviation filed an Employer Response (Form F3) opposing the Application.

[3] The matter was listed for conciliation, by telephone, before me on 28 June, 2019 at 09.00am (AEST). The conciliation, however, could not take place as the Applicant was not able to be contacted at the time. It is noted that voice messages were not able to be left with the Applicant.

[4] On the same date, email correspondence was issued from my Chambers to the Applicant at the e-mail address listed in her application in the following terms:

“Dear Ms. Molloy,

I refer to the above application with the Fair Work Commission.  Your application was listed for telephone conciliation at 09.00am (AEST) today (28 June 2019).

Our Chambers made several attempts to contact you on the telephone number provided in your application.  However, you were unable to be contacted at the scheduled time.

Accordingly, the Deputy President directs that you advise our Chambers by 4.00pm on Monday, 1 July 2019 as to the reasons for your unavailability.  A failure to do so, or if the Deputy President is not satisfied you have a satisfactory explanation, may result in your application being dismissed, without further recourse to you.  Alternatively, you can advise that you no longer intend to proceed with your application.

The Respondent has been copied into this email for their reference.”

(Original emphasis).

[5] No explanation was provided to my Chambers by the date as directed.

[6] On 10 and 11 July 2019, my Chambers attempted to make further telephone contact with the Applicant. On both these occasions, the Applicant was not able to be contacted, with no option to leave voice messages.

[7] The Applicant, as of this date, has not responded to any of the Commission’s e-mail correspondence or telephone communications. She has displayed, in my view, a complete indifference to prosecuting her claim. The employer should not be burdened by being required to further engage in this matter.

[8] I have also considered to the various file notes in the Fair Work Commission’s internal case management system. In particular, I have had regard to a file note of 26 June, 2019, created by a case manager of the General Protections team. The file note indicates that the Applicant was notified of the conciliation scheduled “in 2 days” and had terminated the telephone call when the case manager had requested confirmation as to whether she wished to continue her application.

[9] Section 587(1) of the Act provides:

“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.

(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.”

[10] The words, ‘Without limiting when FWC may dismiss an application,’ at the commencement of s.587(1) of the Act makes clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) or (c).

[11] The power to dismiss an application where there is an unreasonable or explained non-compliance with the Commission’s listings or directions is exercisable by the Commission, as a matter of discretion. So much so is evident by the express language used in s.587 of the Act. Given the circumstances described above, I am satisfied that I should exercise my discretion, under s.587(3)(a) of the Act and dismiss the applicant’s application to deal with contraventions involving dismissal.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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