Nicole Saunders v Anaconda

[2021] FWC 266

[2021] FWC 266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Saunders
v
Anaconda
(U2020/14337)

DEPUTY PRESIDENT BEAUMONT PERTH, 22 JANUARY 2021

Application for an unfair dismissal remedy - application to dismiss pursuant to s 587(1)(c).

[1] On 2 November 2020, Ms Nicole Saunders (the Applicant) filed an application for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). Subsequent to making her application, the Applicant has not complied with directions and has failed to attend a directions hearing.

[2] Directions were issued on 8 December 2020 concerning the programming of the matter. The directions set out the potential consequences of non-compliance. However, the Applicant did not comply with the directions.

[3] The Applicant’s non-compliance was raised with her by email on 21 December 2020. The Applicant was informed to contact Chambers by 22 December 2020. The Applicant did not do so.

[4] Chambers caused another email to be sent on 24 December 2020, again noting the Applicant’s non-compliance with the directions and directing the parties to provide their best contact number for the directions hearing on Wednesday, 6 January 2021 at 10:00hrs (AWST). Again, no contact was received from the Applicant. Chambers attempted to contact the Applicant by placing five telephone calls to her contact number.

[5] On 6 January 2020, the parties were informed that the Commission as currently constituted would consider the dismissal of the application under s 587 of the Act. The parties were directed to file any materials they wished to rely upon concerning the same.

[6] In light of the lack of the contact from the Applicant, the parties were informed that the potential dismissal of the application would be dealt with on the papers unless there was objection otherwise. No objection was received. Again, there was no contact from the Applicant.

[7] The Commission has power to dismiss an unfair dismissal application on its own initiative under s 587 of the Act. The basis for doing so – on this occasion, is that the application has no reasonable prospects of success.

[8] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 1

[9] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal. 2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3

[10] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:

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.

[11] Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Consideration

[12] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. From the time the matter was allocated to Chambers, the Applicant has taken no action to prosecute her case. Her non-compliance with directions and absence of cogent reasons for the same, failure to attend the scheduled mention/directions hearing, and non-responsiveness to the Commission concerning the dismissal of her application, have led me to this conclusion.

[13] It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, dismiss her application pursuant to s 587(1)(c).

[14] An Order 4 to this effect is issued concurrently.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR726286>

 1   Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 3 Ibid [31].

 4   PR726286.