Ms Kelli Lumsden v GJJ Enterprises Pty Ltd T/A the Green and Clean Team

[2018] FWC 4096

[2018] FWC 4096

FAIR WORK COMMISSION

DECISION

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

Ms Kelli Lumsden
v
GJJ Enterprises Pty Ltd T/A The Green and Clean Team
(U2018/2480)

DEPUTY PRESIDENT ASBURY BRISBANE, 16 AUGUST 2018

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Ms Kelli Lumsden (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by GJJ Enterprises Pty Ltd T/A The Green and Clean Team (the Respondent). The application was filed in the Fair Work Commission (the Commission) on 11 March 2018.

[2] On the Form F2 application, the Applicant had answered question 2.1 “What outcome are you seeking by lodging this application?” by stating “I am hoping to receive unpaid wages owing to me and also unpaid superannuation that had not been paid throughout my employment.”

[3] The matter was initially listed for a Telephone Conciliation before a Fair Work Commission Conciliator on 9 April 2018. A notice of listing for this conciliation was sent to the Applicant’s email address on 4 April 2018, on the basis that the Applicant nominated on her application that she would like to receive documents from the Commission by email.

[4] On 6 April 2018, correspondence was received from Ms Sylvia Nymand of SV Partners, an accountancy and advisory firm. The correspondence referred to the appointment of a Ms Anne Meagher as a registered liquidator of the Respondent, and attached a Federal Court Order that stated the Respondent was wound up in insolvency. The correspondence advised that SV Partners had sent correspondence to the Applicant advising her of the liquidation, and that she could make a claim through the Fair Entitlements Guarantee Scheme (FEG Scheme) for her outstanding entitlements. The correspondence also stated that outstanding superannuation is a priority debt in the Liquidation and that the liquidator was uncertain if there would be sufficient recoveries to pay a dividend to priority creditors.

[5] The conciliation was subsequently rescheduled for 10 April 2018. An amended notice of listing was sent by email to Ms Lumsden’s email address on 9 April 2018. Notes on the file indicate that telephone contact was also made by the Commission’s Unfair Dismissal Case Management Team with both the Applicant and Ms Nymand on behalf of the Respondent, who each confirmed their availability for the rescheduled conciliation conference.

[6] There was no appearance by the Applicant at the Conciliation conference of 10 April 2018. The Applicant was contacted on a mobile telephone number nominated by her on her application. Following the Conciliation conference which did not proceed due to the Applicant not responding to attempts to contact her for the conference, correspondence was sent to the Applicant by email stating there had been four attempts to contact her on her mobile telephone to facilitate her attendance, which had gone unanswered. The correspondence also advised the Applicant to make contact with the Commission.

[7] No response was received from the Applicant and the file was allocated to me on 16 April 2018. Correspondence was received from Ms Meagher on 17 April 2018, advising again that she had written to the Applicant to inform her of the Respondent’s liquidation, and of her ability to make a claim for unpaid wages pursuant to the FEG Scheme. The correspondence also stated that neither Ms Meagher or her colleagues would be appearing at any future proceeding in relation to this matter on behalf of the Respondent.

[8] On 8 June 2018 I instructed my Associate to contact the Applicant to ascertain her intentions in relation to her application. My Associate contacted the Applicant on her mobile telephone that day, and the telephone call was terminated by the Applicant shortly after she answered. My Associate attempted to call the Applicant on the mobile telephone number she had provided several times, but was unable to contact the Applicant due to the Applicant terminating the call. My Associate left a voice mail message for the Applicant to return the phone call.

[9] My Associate contacted the Applicant again on 19 June 2018, and the call was disconnected by the Applicant shortly after she answered. My Associate attempted to call again but was unsuccessful. Another voicemail message was left for the Applicant to return the phone call.

[10] On 21 June 2018 I instructed my Associate to send correspondence to the Applicant. The correspondence made reference to the correspondence sent to the Applicant by the Respondent’s liquidators, and noted that the Applicant had failed to attend the conciliation on 10 April 2018, and that calls to the Applicant by telephone on 8 June 2018 and 19 June 2018 had been disconnected by the Applicant a short time into the phone call. The correspondence requested the Applicant respond as to her intentions with her unfair dismissal application by close of business on 25 June 2018. The correspondence warned the Applicant that if no response was received I would consider she no longer wished to proceed with her application, and the application may be dismissed.

[11] No further response has been received from the Applicant and no action has been taken by her to advise of her intentions to proceed with this application or to explain her failure to participate in proceedings.

[12] Section 587(1) 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.

(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.”

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

[14] The Applicant has not demonstrated a willingness to prosecute her case since the filing of her application and has not responded to correspondence from the Commission. I have formed the view the Applicant no longer wishes to pursue her application. In all the circumstances, I have determined to dismiss the application, on my own initiative, pursuant to s.587(3)(a) of the Act on the grounds that it has no reasonable prospect of success due to the repeated failure of the Applicant to prosecute the application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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