Ms Lian Takayidza v M & T Gelato Pty Ltd
[2024] FWC 2196
•16 AUGUST 2024
| [2024] FWC 2196 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Lian Takayidza
v
M & T Gelato Pty Ltd
(U2024/5701)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 16 AUGUST 2024 |
Application for an unfair dismissal remedy – non-compliant applicant – s 587 motion to dismiss – application dismissed
On 20 May 2024 Ms Lian Takayidza (Ms Takayidza or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against her former employer M & T Gelato Pty Ltd (M & T Gelato or the respondent).
M & T Gelato responded on 2 June 2024 opposing the application. The response was filed by the company owner Mr Adriano Macri. The response indicated that the correct legal name of the employer was Adriano Macri (ACN 667 506 667) trading as Bottega Gelateria Handcrafted (ABN 88667506667).
Background
The respondent did not consent to conciliation before a staff conciliator.
Accordingly, the matter was allocated to me.
On 9 July 2024 I conducted a directions hearing.
Ms Lian Takayidza attended. M & T Gelato also attended.
I issued directions on 10 July 2024. This included the below direction:
“[10] In this matter the Commission has agreed to provide the parties with a further opportunity to reach a private resolution via Member Assisted Conciliation prior to the hearing.
[11] Member Assisted Conciliation would be conducted as an informal conference and involve a member of the Commission other than myself. Member Assisted Conciliation is likely to take place prior to 2 August 2024 and the Chambers of the other Member of the Commission will be in contact with parties regarding these details. Parties should be aware that this conciliation opportunity does not detract from the obligation to comply with these directions.”
The directions of 10 July 2024 were sent to the last advised email address of both Ms Takayidza and M & T Gelato.
The matter was subsequently listed for an in-person Member Assisted Conciliation before Commissioner Thornton at 10:30am (ACST) on Tuesday 30 July 2024 and the parties were sent a Notice of Listing.
Both parties failed to attend the member assisted conciliation. No advance notice was provided by either party for their non-attendance, nor was a request for rescheduling made.
Subsequently, an email was sent from the chambers of Commissioner Thornton. It read as follows:
“Good Morning Parties,
RE: U2024/5701 - Ms Lian Takayidza v M & T Gelato Pty Ltd
I refer to the above matter.
Neither party was in attendance at the Commission today for the listed Member Assisted Conciliation.
If either party would like a further opportunity to conciliate the matter, please contact this Chambers by close of business on Friday, 2 August 2024.
Parties are now to file their materials as directed by Deputy President Anderson.
Thank you.”
Neither party responded to the above email or sought that the matter be relisted for further member assisted conciliation.
The Commission’s file was then returned to me. I issued the following directions on 1 August 2024:
“NOTING THAT:
•Ms Lian Takayidza and M & T Gelato Pty Ltd failed, without explanation, to attend a member assisted conciliation which had been scheduled before Commissioner Thornton on 30 July 2024;
THE COMMISSION DIRECTS as follows:
[1] Ms Lian Takayidza and M & T Gelato Pty Ltd are each DIRECTED to provide a written explanation to the Commission (copied to the other side) of their reasons for non-attendance at the 30 July 2024 member assisted conciliation by close of business (5.00pm ACDT) on Friday 9 August 2024.
[2] The Directions issued on 10 July 2024 remain in effect, including Direction [3] which requires filing by Ms Lian Takayidza of her materials by close of business (5.00pm ACST) on Friday 9 August 2024.
[3] If the applicant wishes to discontinue her application in advance of the above date, she may do so by written notice to the Commission, in which case the obligations under these directions and those of 10 July 2024 will cease to apply.
[4] Non-compliance with these directions may disadvantage the parties. The applicant is advised that should the applicant not respond to these directions as required, or not prosecute her application in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission may on the employer’s application (s 399A) or of its own motion (s 587) further consider whether the application should be summarily dismissed without any further proceedings or notice and make a decision on that question. Should the respondent fail to respond to these directions as required the matter may be dealt with in their absence, and orders made to their detriment.
[5] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.”
A written explanation was received from M & T Gelato by email on 1 August 2024.
Ms Takayidza failed to provide a written explanation of her reason for non-attendance at the 30 July 2024 member assisted conciliation as required by direction [1] above.
Ms Takayidza also failed to file her materials as required by close of business (5.00pm ACST) on Friday 9 August 2024 per my earlier directions of 10 July 2024 and reiterated by direction [2] above.
On Monday 12 August 2024 at 11:12am (ACST) the following email was sent by my chambers to the parties:
“Dear Parties
I refer to the Directions of Deputy President Anderson dated 1 August 2024 (attached).
Per Direction [1], both parties were directed to provide a written explanation to the Commission (copied to the other side) of their reasons for non-attendance at the 30 July 2024 member assisted conciliation by close of business (5.00pm ACDT) on Friday 9 August 2024.
A response was received from the employer M & T Gelato Pty Ltd. A response has not been received from Ms Lian Takayidza.
Direction [4] outlined that ‘Non-compliance with these directions may disadvantage the parties. The applicant is advised that should the applicant not respond to these directions as required, or not prosecute her application in a manner considered by the Commission to meet the minimum necessary obligations of a litigant, the Commission may on the employer’s application (s 399A) or of its own motion (s 587) further consider whether the application should be summarily dismissed without any further proceedings or notice and make a decision on that question…’
Ms Takayidza, due to your failure to respond the Commission will now consider, on its own motion, whether your application should be dismissed under s 587 on the ground that it has no reasonable prospects of success having regard to your failure to comply with Commission directions.
Any submission on that question ONLY by the applicant or respondent is directed to be made by 12:00 noon (ACST)) Thursday 15 August 2024, after which time a decision will be made and advised.”
No response has been received from the applicant. Nor was any further response received from the respondent to indicate a position on the Commission summarily dismissing the application for non-compliance reasons.
Consequent on the above, I have determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Ms Takayidza in accordance with the minimum obligations required of an applicant and thus has no reasonable prospects of success.
The following are my reasons.
Consideration
Section 587 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 ther 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.” (notes omitted)
No communication has been received from Ms Takayidza since the directions hearing of 9 July 2024. Ms Takayidza has failed to comply with her obligations under the directions of 10 July 2024 and the further directions of 1 August 2024 and 12 August 2024.
More particularly, Ms Takayidza did not attend proceedings before Commissioner Thornton on 30 July 2024 despite being sent the relevant Notice of Listing. Further, Ms Takayidza did not provide advance notice of an inability to attend and has not otherwise been responsive to the subsequent directions or emails sent by my chambers.
Thus, the applicant’s failure to attend or be responsive has put both the Commission to unproductive cost and effort and inhibited the efficient conduct of the application.
These considerations weigh in favour of dismissing the application under s 587.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. These are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free.
Ms Takayidza was put on notice by my directions of 1 August 2024 that her application was at risk of being summarily dismissed yet she has still failed to be responsive or compliant.
I am satisfied, in light of Ms Takayidza’s non-compliance, aand irrespective of the respondent’s conduct, that her application has no reasonable prospects of success as it is not being actively prosecuted to the minimum required level. Section 587 is enlivened.
There are no discretionary reasons not to exercise the power on the Commission’s own motion. Ms Takayidza had, but failed to take, an opportunity to be heard on the question and to regularise the conduct of her application.
Conclusion
Application U2024/5701 is dismissed under s 587. An Order[1] to that effect is issued in conjunction with the publication of these reasons.
DEPUTY PRESIDENT
[1] PR778414
Printed by authority of the Commonwealth Government Printer
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