Ms Karen Lee Edwards v Juno Berry Pty Ltd Alltime Property Care

[2023] FWC 1460

[2023] FWC 1460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Karen Lee Edwards
v

Juno Berry Pty Ltd – Alltime Property Care

(U2023/2047)

DEPUTY PRESIDENT WRIGHT SYDNEY, 20 JUNE 2023

Application for an unfair dismissal remedy – application dismissed

1. On 17 March 2023, Ms Karen Edwards (Applicant) made an application (the application) to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Juno Berry Pty Ltd (Respondent).

1. On 24 March 2023, the Respondent filed a Form F3 – Employer response to unfair dismissal application (the response) which raised a jurisdictional objection, namely that the Respondent is a small business employer and the employer complied with the Small Business Fair Dismissal Code.

1. The matter was listed for Member Assisted Conciliation and Directions before me on 5 May 2023. After hearing from the parties, my Chambers issued directions for the filing and serving of materials and listed the matter for hearing in relation to jurisdiction and merits at 10:00am on 14 June 2023 in person, in Sydney (the Directions).

1. The parties filed material in response to the Directions on the relevant dates.

1. At 6:36am, on 14 June 2023, Samantha Mahmutovic sent an email to my Chambers on behalf of the Respondent advising that the Respondent was going into liquidation and would be wound up by the end of June, and suggesting that the hearing be postponed in order for the Applicant to maintain future employment.

1. In response, my Chambers sent an email to Ms Mahmutovic at 9:09am on 14 June 2023 advising that the hearing remained listed for 10:00am that morning and that both parties were expected to attend.

1. Ms Mahmutovic sent a further email to my Chambers at 9:47am on 14 June 2023 advising that she would not be attending the hearing due to a medical condition and that she would provide a medical certificate. She did not provide that medical certificate, and it was not requested.

1. The Applicant did not attend the hearing and did not respond to three attempts by my Chambers to contact her on the phone number provided in the application on the morning of the hearing.

1. At 10:50am on 14 June 2023, my Chambers send an email to both parties confirming that both parties failed to comply with the Directions by failing to attend the hearing and requiring the Applicant by 4pm that day to either:

1.    Advise whether she wished to discontinue the matter, or

2.    Provide reasons for her non-attendance and the reasons why the Commission should not dismiss her claim for failure to attend the proceedings

1. The Applicant did not respond to this email. On 15 June 2023, my Chambers sent a further email to the Applicant, noting her lack of response to the previous email and requesting the Applicant to advise my Chambers by 10:00am on Monday 19 June 2023 if she wished to discontinue the matter. The email further advised that in the absence of the Applicant providing reasons for why the Commission should not dismiss her claim, the Commission would dismiss the application pursuant to s.587 of FW Act.

1. Section 587 of the FW Act provides as follows:

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 prospect 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. The terms of s.587(1) make it clear that the circumstances that the Commission may dismiss an application are not limited to those set out in s.587(1)(a)-(c).

1. I am satisfied that the Commission has taken reasonable and appropriate steps to inform the Applicant of the hearing date, contact the Applicant on the morning of the hearing and inform the Applicant of the consequences of both not attending the hearing and not responding to email correspondence from my Chambers. The Applicant, through her failure to attend the hearing and to respond to attempts to contact her by my Chambers, has indicated by her inaction that she no longer wishes to pursue the application.

1. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the FW Act. I order accordingly.

DEPUTY PRESIDENT

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