Ms Mia Lehto v S Line Pty Ltd
[2022] FWC 3134
•25 NOVEMBER 2022
| [2022] FWC 3134 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Mia Lehto
v
S Line Pty Ltd
(U2022/8863)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 25 NOVEMBER 2022 |
Application for an unfair dismissal remedy – non-compliance with directions – application dismissed pursuant to s.587
On 31 August 2022, Ms Mia Lehto (Applicant) filed pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application from an unfair dismissal remedy (Application) concerning the termination of her employment from S Line Pty Ltd (Respondent).
The Applicant stated on her Form F2 that her employment with the Respondent commenced in March 2021 and that she was dismissed on 13 August 2022. The Respondent did not file any response form or submissions with the Commission. Therefore, based on the material provided by the Applicant, it appears that she satisfies the criteria for a person who would be eligible for remedy from unfair dismissal.
The Applicant did not provide an email address for the Respondent and the Commission consequently sent written correspondence to the Respondent’s postal address as provided on the Application. The Commission made an attempt to contact the Respondent on the provided contact number on 2 September 2022. The Applicant advised by telephone that the Respondent had only ever contacted her by way of a ‘WhatsApp’ message service.
The matter was listed for a conciliation by a staff conciliator on 27 September 2022. The Respondent was sent the relevant information to the postal address provided through registered post. On the day of the listed conciliation, the Commission successfully contacted an individual identified as “Ranmeed” from the Respondent. Ranmeed informed he wasn’t aware of the conciliation or of the Application. Ranmeed requested the documents be sent to his email address and provided a direct email. This instance was the final time the Respondent communicated with the Commission.
On 30 September 2022, the Commission sent the Application, notice of listing and request for the Form F3 to the Respondent’s email address.
The Commission rescheduled a second conciliation on 18 October 2022 and following several attempts to contact the Respondent on the provided details, was unable to proceed with the conciliation.
On 19 October 2022, the matter was allocated to me. The following day on 20 October 2022, I issued directions for the filing of material. The Directions required the Applicant file and serve her material by no later than 4:00pm on Thursday 3 November 2022.
I listed the matter for a preliminary conference on 3 November 2022. On 21 October 2022, the Applicant’s representative at the time requested an adjournment of the conference and the matter was relisted for 4 November 2022.
The Directions required the Respondent file their Form F3 by no later than 4:00pm on 26 November 2022. On 1 November 2022, my Chambers wrote to the parties indicating to the Respondent that they had failed to comply with the Directions and warning that in the absence of any information from them that the matter would be decided in their absence.
On 4 November 2022, my Associate made several attempts to contact the Respondent at the time of the preliminary conference. They did not answer the calls nor respond to any correspondence. The Applicant also failed to file her material by the date specified in the Directions and her representative at the time claimed to not have received the directions.
Following the listed time for the conference, I issued amended directions which required, inter alia, that the Applicant file her material by no later than Wednesday 9 November and that they should be accompanied by an explanation for her failure to comply with the Directions.
On 9 November 2022, the Applicant’s Representative filed a Form F54 withdrawing their representation and Ms Lehto failed to comply with the Directions.
On 11 November 2022, my Chambers issued the following correspondence to the parties:
“Dear Ms Lehto,
I write in relation to the subject matter.
On 4 November 2022, Chambers sent an email to yourself and your former representative directing you to provide your material by no later than 4:00pm, 9 November 2022. This direction also indicated that your submissions must be accompanied by the reasons for your failure to comply with the original directions.
You have now twice failed to comply with the directions of the Commission. In the absence of you filing any materials in accordance with the Directions, the Deputy President proposes to dismiss your application pursuant to section 587 of the Fair Work Act.
"s.587 Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA 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), FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application."
You are invited to make submissions providing reasons as to why the FWC should not dismiss your application and evidence or other documentary material supporting those reasons by 4:00pm (AEST) Monday 14 November 2022.
Please be advised that if you do not make submissions by 4:00pm (AEST) Monday 14 November 2022 your application may be dismissed, and such decision will be made publicly available on the Fair Work Commission website.
If you no longer wish to pursue your application for unfair dismissal and do not intend to comply with the directions above, please file a completed Form F50 - Notice of Discontinuance (see attachment).
Additionally, should the Respondent file according to section s.399a of the Fair Work Act 2009 the application may be dismissed.
…”
The Applicant failed to provide reasons as directed on 11 November 2022. The Applicant also again failed to provide her submissions by 4pm 14 November 2022, pursuant to those directions on 11 November 2022.
On 22 November 2022, my Chambers served the Form F54 from the Applicant’s former representative on the Applicant and granted a further 2 day extension for the Applicant to provide the directed material and non-compliance explanation. The Applicant was directed to file her material by no later than 4:00pm on Thursday 24 November 2022 and was reminded that in the absence of any response before the extended deadline that the matter could be dismissed without further notice.
To date, my Chambers has not received any further form of communication from the Applicant.
Section 587 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), 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) FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
Pursuant to s.587, the Applicant’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
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