Olivia Bayliss v The Freshionals Pty Ltd

[2023] FWC 2041

[2023] FWC 2041

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Olivia Bayliss

v

The Freshionals Pty Ltd

(U2023/4967)

COMMISSIONER SPENCER BRISBANE, 15 AUGUST 2023

Application for an unfair dismissal remedy

1. On 6 June 2023, Ms Oliva Bayliss (the Applicant), made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from The Freshionals Pty Ltd (the Respondent) and that her dismissal was harsh, unjust or unreasonable.

1. The Applicant nominated 2 June 2023 as the date of her dismissal. In a Form F3 completed by the Respondent, the dismissal date was similarly recorded as 2 June 2023. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.

1. Prior to this matter being allocated to my chambers, a conciliation was listed for 7 July 2023. At the scheduled listing time, the Conciliator contacted the Applicant via telephone (on the contact number she had provided) and left voicemails when she did not answer. The Applicant did not respond and did not attend the conciliation.

1. On 21 July 2023, the matter was allocated to my chambers. On 24 July 2023, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 31 July 2023.

1. On 28 July 2023, an email was sent from chambers instructing the Applicant confirm her attendance for the conference on 31 July 2023 by no later than 5:00pm on 28 July 2023. The Applicant did not respond to this email.

1. The Applicant did not participate in the telephone conference on 31 July 2023, despite numerous attempts by my Associate to contact her via telephone, including leaving voicemail messages.  On 3 August 2023, correspondence was sent to the parties from chambers noting the Applicant’s absence at the telephone conference and instructing that she contact chambers by email by 4:00 PM on 4 August 2023. The Applicant did not respond to this email.

1. On 3 August 2023, the Applicant was informed via email that on 7 August 2023 I intended to consider the dismissal of the application for want of prosecution, in accordance with s.587 of the Act, if no response was received from the Applicant by 4:00 PM on 4 August 2023.

2. To date, the Applicant has not responded to any of the correspondence sent by my chambers.

1. Section 587 of the Act provides as follows:

“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.”

1. Numerous attempts have been made by my chambers to engage the Applicant in progressing her application with the Commission. The Applicant has failed to attend the initial conciliation and subsequent telephone conference without any reasonable explanation, and the Applicant has not responded to any communication from chambers. The Applicant has demonstrated an unwillingness to prosecute her own application. Accordingly, I have decided to dismiss the application.

1. The words “Without limiting when the 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. I Order accordingly.

COMMISSIONER

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