Ms Zali Diener v Jinyiyao Investment Pty Ltd and Tiger Investment Development Pty Ltd

[2020] FWC 624

[2020] FWC 624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Ms Zali Diener
v
Jinyiyao Investment Pty Ltd and Tiger Investment Development Pty Ltd
(U2019/13315)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 11 FEBRUARY 2020

Application for an unfair dismissal remedy – non-responsive applicant - failure to attend hearings - failure to comply with directions – application dismissed pursuant to section 587 FW Act

[1] On 28 November 2019 Ms Zali Diener (Ms Diener) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

[2] Ms Diener alleges she was unfairly dismissed from Jinyiyao Investment Pty Ltd and Tiger Investment Development Pty Ltd (Jinyiyao) following complaints made by co-workers. Jinyiyao contends that Ms Diener was dismissed due to poor work performance. Jinyiyao raised jurisdictional objections to Ms Diener’s application, being that Jinyiyao is a small business and had complied with the Small Business Fair Dismissal Code and that Ms Diener had not worked the requisite minimum employment period required by the FW Act.

[3] A number of attempts have been made by the Commission to progress Ms Diener’s application in the normal manner. These attempts are outlined below.

[4] I now consider it necessary to consider whether the Commission should dismiss Ms Diener’s application of its own motion under section 587 of the FW Act. This Decision deals with that question.

The facts

[5] The following is a brief summary of the Commission’s attempts to progress Ms Diener’s application:

1. Conciliation before a Commission staff conciliator, listed for 16 January 2020, did not proceed due to Ms Diener’s non-attendance.
2. Ms Diener later advised the Commission by email that she could not attend due to work commitments.
3. On 17 January 2020 a Commission staff member contacted Ms Diener to determine whether she could attend a subsequent conciliation, Ms Diener advised she could not attend during work hours. The Commission staff member requested that Ms Diener email the Commission her intentions in advancing her application.
4. Having not received a reply, the Commission emailed Ms Diener requesting that she provide suitable dates for conciliation by 21 January 2020 or the matter would be allocated to a Member for determination. Ms Diener did not reply.
5. On 23 January 2020 and again on 24 January 2020 the Commission made unsuccessful attempts to contact Ms Diener by telephone. On both occasions’ voicemail messages were left urging Ms Diener to call back. No response was received. The matter was then removed from the conciliation process and allocated to me for determination.
6. On 30 January 2020 my Chambers emailed the parties directly with details of a Directions Conference to be held by telephone at 12:15pm (ACDT) on 4 February 2020. The email indicated that a formal Notice of Listing would be issued in due course. This email also invited the parties to call my Chambers if they had any queries.
7. On 31 January 2020 my Chambers emailed a Notice of Listing to the parties confirming the Directions Conference by telephone at 12:15pm (ACDT) on 4 February 2020.
8. Ms Diener did not attend the Directions Conference on 4 February 2020. My Chambers telephoned Ms Diener’s listed number twice, leaving voicemail messages both times requesting she call Chambers urgently to join the conference. Ms Diener did not attend.
9. The employer attended the directions hearing of 4 February 2020. At the hearing, in light of Ms Diener’s absence, I adjourned the matter to 6 February 2020.
10. Following the 4 February 2020 Directions Conference I issued Directions. Those Directions listed Ms Diener’s application for a further Directions Conference by telephone at 4:30pm (ACDT) on 6 February 2020.

a. As part of my Directions, I also directed Ms Diener to provide to the Commission and to Jinyiyao a written explanation detailing the reason(s) why she did not attend the 4 February 2020 conference. This explanation was to be provided by close of business 5 February 2020. Ms Diener did not supply this explanation by the required date, or at all.
b. I further directed that Ms Diener attend the rescheduled Directions Conference on 6 February 2020.
c. Ms Diener was also put on notice in my Directions that failure to attend and failure to comply may enliven the Commission’s powers to dismiss her application under section 587 of the FW Act.

11. At 5:15pm on 5 February 2020 my Chambers attempted to call Ms Diener. This call was not answered. A message was left reminding Ms Diener of her overdue submission and that the matter has been listed for further Directions Conference on 6 February 2020.
12. Ms Diener did not attend the further Directions Conference on 6 February 2020. Having not dialled in again at the appointed time, my Chambers contacted Ms Diener by voicemail and requested she urgently join the conference. Ms Diener did not respond.
13. The employer attended the directions hearing of 6 February 2020. At the hearing, in light of Ms Diener’s further non-appearance, I adjourned to consider my decision.

Relevant statutory provisions

[6] Section 587(1) 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), 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.”

[7] I note for completeness that Jinyiyao has not made an application under section 399A of the FW Act though it foreshadowed that it may do so if the Commission were not to act of its own motion.

Consideration

[8] Section 587 of the FW Act empowers the Commission to dismiss an application if it has no reasonable prospects of success.

[9] Where an application is not being prosecuted in an active manner by an Applicant, and where an Applicant fails to attend hearings and comply with directions, the application will necessarily have no reasonable prospects of success as it cannot succeed unless heard and determined on the merits.

[10] It is a well-established principle that an applicant has an obligation to comply with directions of the Commission and to actively and attentively prosecute their application. There are certain minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim against a private individual or business in a quasi-judicial tribunal such as the Commission. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so utilises the services of publicly funded members and staff who collectively have statutory obligations to conduct the institution’s business fairly, efficiently and in a timely manner having regard to the interests of all applicants and respondents. One such discipline is to comply with directions in advance of hearings.

[11] In Peter Viavattene v Health Care Australia the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 1 

[12] It is a significant matter to dismiss an application that is otherwise within jurisdiction without a merits hearing. 2 However, the parliament has underscored the importance of actively and attentively prosecuting one’s application by empowering the Commission to dismiss applications of its own motion (section 587 of the FW Act) and to further empower the Commission to do so for specific non-compliance reasons in the unfair dismissal jurisdiction on application by a respondent employer (section 399A FW Act).

[13] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:

“[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.” 3 

[14] Ms Diener has failed twice to attend Directions Conferences on her application. The second of those failures was after the Commission had directed that she attend.

[15] Ms Diener has also failed to comply with a Direction that she provide an explanation for her non-attendance at the first Directions Conference.

[16] Ms Diener has also been non-responsive to attempted contact by my Chambers.

[17] I am satisfied that Ms Diener was properly notified of the Directions Conferences before me on 4 and 6 February 2020. Ms Diener, having not advised my Chambers of her unavailability or otherwise, failed to attend those hearings.

[18] I am also satisfied that Ms Diener was properly notified of my Direction that she file a written explanation concerning her non-attendance at the first Directions Conference. There has been no compliance with this Direction by the time specified or otherwise.

[19] The potential consequences for failing to attend hearings or conferences and failure to comply with Directions were notified to Ms Diener on 4 February 2020:

“[4] Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. Zali Diener is put on NOTICE that the Commission may regard non-attendance at hearings/conferences, and non-compliance with Directions as enlivening the power to dismiss applications at the Commission’s own initiative and without further notice under section 587 of the Fair Work Act 2009 (FW Act).” 4

[20] The Commission has expended considerable effort in attempting to enable Ms Diener to prosecute her claim yet she has remained unresponsive since the matter has been referred for hearing and determination. She has put the Commission and the employer to cost and expense in dealing with her application while not actively litigating to advance her own interests.

[21] In all of the circumstances, I am satisfied that Ms Diener has failed to comply with Directions of the Commission and that her application has no reasonable prospects of success as it is not being actively prosecuted to the required standard.

[22] Accordingly I dismiss the application pursuant to section 587(1)(c) of the FW Act. An Order 5 to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716463>

 1   [2013] FWCFB 2532; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 2   Natalie Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017] FWCFB 5952

 3   [2019] FWC 6264

 4   Directions 4 February 2020 at [6]

 5   PR716474