Ms Tracey Golt v Butter Fish Services Pty Ltd
[2024] FWC 3056
•5 NOVEMBER 2024
| [2024] FWC 3056 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tracey Golt
v
Butter Fish Services Pty Ltd
(U2024/9645)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 5 NOVEMBER 2024 |
Application for an unfair dismissal remedy
On 19 August 2024, Ms Tracey Golt (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is Butter Fish Services Pty Ltd (Respondent).
Direction [2] of the Directions issued on 15 October 2024 reads:
“[1]By 4.00pm AEDT on Tuesday, 29 October 2024, the Applicant must file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal application.”
The Applicant did not comply with Direction [2].
On 31 October 2024, at 2:01PM AEDT, the following email (Show Cause Email) was sent to the Applicant:
“Dear Ms Golt,
Re: U2024/9645 - Ms Tracey Golt v Butter Fish Services Pty Ltd
I refer to the matter above.
Background
On 15 October 2024, the Fair Work Commission issued the attached Directions in this matter.
Direction [2] of those directions read as follows:
[2] By 4.00pm AEDT on Tuesday, 29 October 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim.
To date, Chambers has not received any materials in compliance with Direction [2].
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 10:00AM AEDT Tomorrow, Friday 1 November 2024.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.
Yours faithfully,
[Associate].”
On 1 November 2024, at 11:40AM AEDT, the following voicemail (the Voicemail) was left by the Applicant by telephone to Deputy President Boyce’s Chambers:
“Yes hi, my name is Tracey Golt. I have currently got a matter between Tracey Golt and Butter Fish Services. Could you please contact me about this? The number is U2024/9645. That's the matter. Can you please call me back as soon as possible because this matter needs to be sorted. Thank you.”
On 1 November 2024, at 12:24PM, the following email (the Further Email) was sent to the Applicant:
“Dear Ms Golt,
Chambers confirms receipt of a voicemail left by you earlier today.
It is Chambers policy that all communication be via email in order to preserve the Commission’s policy of openness and transparency, and to ensure that all parties are privy to any communications between the parties and Chambers.
If you would like to raise concerns in respect of the below email, please do so in writing to Chambers, copying in all parties to the matter, by no later than 2:00PM today. In the absence of any such correspondence, the matter may be dismissed.
Yours faithfully,
[Associate]”
The Applicant has made no response to the Further 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 [2] and/or the Show Cause email and/or the Further 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 [2], the Show Cause Email, and the Further 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
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