Ms Steffanie Connors v Barclays Cafe

[2019] FWC 7403

[2019] FWC 7403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Steffanie Connors
v
Barclays Cafe
(C2019/4855)

DEPUTY PRESIDENT CROSS SYDNEY, 25 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] On 7 August, 2019, Ms Steffanie Connors (the “Applicant”) made an application to deal with contraventions involving dismissal, pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed by Barclays Café (the “Respondent”) from 7 July, 2019, to 14 July, 2019.

[2] On 3 September, 2019, the Respondent filed an Employer’s Response (Form F8A) opposing the Application.

[3] On 18 September, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application was to be allowed an additional period within which her Application would be determined. It is noted that the Respondent did not participate in the Directions Hearing. The Applicant agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant also agreed that the Application would be determined upon the materials filed, unless either party made an application for a hearing of evidence, and that application was granted. In the Directions Hearing, the Applicant was specifically directed to the five (5) factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act.

[4] On 18 September, 2019, final Directions (“the Directions”) were issued from my Chambers to the parties in the following terms:

1. “The Applicant (Steffanie Connors) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing her out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by no later than 4.00pm on 1 October 2019.

2. The Respondent (Barclays Cafe) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 22 October 2019.

3. The Applicant (Steffanie Connors) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 29 October 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.” (Original emphasis).

[5] No material were received by 1 October, 2019, pursuant to Direction 1, nor was there any explanation for the delay. As such, my Chambers issued correspondence on 4 October, 2019, to the Applicant in the following terms:

“Dear Ms Connors,

I refer to the above matter.

Chambers notes that your outline of submissions and any supporting materials were due by 4.00pm on 1 October 2019.  Chambers can confirm no such materials have been received from you. 

As such, you are directed to file your materials with Chambers, and also forward a copy of those materials to the Respondent, by 4.00pm on 8 October 2019.  Alternatively, please advise if you no longer wish to pursue your application with the Commission.” (Original emphasis).

[6] Again, no such material was filed by the Applicant on 8 October, 2019, nor did the Applicant provide any explanation for the delay.

[7] On 23 October, 2019, further correspondence was sent to the Applicant from my Chambers in the following terms:

“Dear Ms Connors,

I refer to the email issued from Chambers below. 

Chambers can confirm that, to date, no such materials have been filed by you in support of your application. 

In the circumstances, kindly advise if you no longer wish to pursue your application against your former employer by advising Chambers of your position by 4.00pm tomorrow (24 October 2019).  If no correspondence is received from you by this date and time, the matter may be dismissed without further recourse to you.”

[8] To date, there has been no further communication from the Applicant.

[9] Section 587(1) of the Act provides:

“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.”

[10] The words, ‘Without limiting when FWC may dismiss an application,’ at the commencement of s.587(1) of the Act makes clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) or (c).

[11] The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission. So much so is evident by the express language used in s.399A(1)(b) of the Act. Further, as Deputy President Colman observed in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy[2019] FWC 6264, at paragraph [19]:

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”

[12] The Applicant has provided no reason whatsoever, let alone a sufficient reason, for her failure to file her outline of submissions and any supporting materials pursuant to the Directions. She has displayed, in my view, a complete indifference to prosecuting her claim.

[13] Given the circumstances described above, I am satisfied that I should exercise my discretion under s.587(3)(a) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal. Accordingly, the Directions of 18 September, 2019, are formally discharged.

DEPUTY PRESIDENT

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