Ms Meiyun Xue v Serco Australia Pty Limited

[2024] FWC 3596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Ms Meiyun Xue
v

Serco Australia Pty Limited

(U2024/12864)

DEPUTY PRESIDENT BOYCE

SYDNEY, 30 DECEMBER 2024

Application for an unfair dismissal remedy – failure to comply with Directions – Application dismissed

On 28 October 2024, Ms Meiyun Xue (Applicant) filed an application pursuant to s.392 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a application seeking remedy for an unfair dismissal (Application). The Respondent to the Application is Serco Australia Pty Ltd.

Direction [1] of the Directions issued on 11 December 2024 reads:

“[1] By 4.00PM AEDT on Monday, 23 December 2024, the Applicant is must file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in in support of her substantive unfair dismissal claim”

The Applicant has not complied with Direction [1].

A request for an extension of time in which to file materials was made by the Applicant on 20 December. That application was refused and the Applicant put on notice that the matter would be dismissed forthwith in the event of non-compliance with the Directions.

On 23 December 2024, the following email was sent to the Applicant (Show Cause Email):
”Dear Ms Xue,
The Deputy President does not grant the request for an extension for filing your materials.
The Directions in this matter were issued on 11 December 2024 (see attached). Parties do not have a right for legal representation or advice. Hence, a request based upon an absence of legal representation is not a reason for an extension to be granted.
Further, you have provided no information or evidence of steps taken to date to obtain legal representation, and did not contact Chambers until one business day before the due date of your materials to seek this extension.
Directions must be complied with or the proceedings will be dismissed. You therefore have until 4:00PM AEDT today to file your materials.
Yours faithfully,
[Associate]”

Chambers received no correspondence or other communication from the Applicant in relation to the Show Cause Email.

Legislative Provisions

Section 587 of the Act reads:

“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.”

In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”

Consideration

As the Applicant has made no attempt to comply with Direction [1] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.

In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [1] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Hearing details:

Final written submissions:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Ms Meiyun Xue v Serco Australia Pty Limited, the applicant filed an unfair dismissal claim under the Fair Work Act 2009. The respondent, Serco Australia Pty Limited, was required to file an outline of submissions, witness statements, and supporting documents by 4:00 PM AEDT on Monday, 23 December 2024. Despite a direction issued on 11 December 2024, the applicant did not comply with this requirement and failed to file the necessary materials by the deadline. A subsequent request for an extension of time was denied, and the applicant was notified that non-compliance would result in the dismissal of the matter. No communication or response was received from the applicant following this notification.

The central legal issue before the court was whether the application should be dismissed for the applicant's failure to comply with the directions issued by the Fair Work Commission. The court had to consider the provisions of Section 587 of the Act, which allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court also considered the case of Rebecca Tomas v Symbian Health, where it was noted that Section 587 does not limit the Commission's power to dismiss matters for other reasons.

The court found that the applicant's non-compliance with the directions and the show cause email was both unexplained and unsatisfactory. The court concluded that the applicant's failure to file the required materials and provide any explanation for non-compliance warranted the dismissal of the application. The dismissal was made pursuant to Section 587(3)(a) of the Act, on the basis that the application was not made in accordance with the Act due to non-compliance with the directions. The court issued an order dismissing the application, which was published alongside the decision.

In conclusion, the application was dismissed due to the applicant's failure to comply with the directions of the Fair Work Commission. The court's decision was based on the applicant's unexplained and unsatisfactory non-compliance with the specified deadlines and directives. The dismissal was made under Section 587(3)(a) of the Fair Work Act 2009, and an order to this effect was issued.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established