Olivia Salter v The Trustee for the Roman Catholic Church for the Diocese of Parramatta
[2023] FWC 3472
•22 DECEMBER 2023
| [2023] FWC 3472 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Olivia Salter
v
The Trustee For The Roman Catholic Church For The Diocese Of Parramatta
(C2023/7291)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 22 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – failure to comply with Directions – failure to contact the Commission – Application dismissed
On 17 November 2023, Mr Stephen Gaffney (Applicant’s Representative) filed an application on behalf of Ms Olivia Salter (Applicant) pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections involving dismissal application (Application). The Respondent to the Application is The Trustee For The Roman Catholic Church For The Diocese Of Parramatta.
Direction [2] of the Directions issued on 6 December 2023 reads:
“[2] By 4.00pm AEDT on Friday, 15 December 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the no dismissal objection raised.”
Neither the Applicant (nor his Representative) complied with Direction [2].
On 18 December, the following email was sent to the Applicant’s Representative (Show Cause Email):
“Dear Mr Gaffney
Re: C2023/7291 - Olivia Salter v The Trustee For The Roman Catholic Church For The Diocese Of Parramatta
I refer to the matter above.
Background
On 6 December 2023, the Fair Work Commission issued Directions in this matter.
Orders [2] of those directions read as follows:
[2] By 4.00pm AEDT on Friday, 15 December 2023, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in opposition to the no dismissal objection raised.
To date, Chambers has not received any materials in compliance with Order [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 4:00pm AEDT Today, 18 December 2023.
[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 may be dismissed without further notice.
Yours faithfully
[Associate]”
Chambers received the following email from the Applicant on 18 December 2023 (at 4:59pm):
“I have spoken to my case manager on the phone on Friday and I have dis used with her that I will be filling the document out throughout this week. She told me she would notify her supervisor of my circumstances regarding a recent hospital stay. I will ha e access to all evidence and information when I get home on Wednesday.
Liv.”
On 19 December 2023 (at 8:04am), Chambers responded to the Applicant with the following email (Further Show Cause):
Dear Ms Salter
I refer to your email below and respond on behalf of the Deputy President.
The response below is unsatisfactory. It refers to unnamed persons and non-particularised circumstances. Further, your legal representative has not replied at all.
You are provided until 10:00am this Thursday, 21 December 2023 to fully and properly comply with Direction [2] of the Directions issued on 6 December 2023.
Should you fail to comply, your application will be immediately dismissed without further notice to you. To be clear, this is your very last opportunity to comply. A failure to comply will result in your application being dismissed.
Yours faithfully
[Associate]”
Chambers received no correspondence or other communication from the Applicant in relation to the Further Show Cause Email
On 21 December (at 9:51am), the Applicant’s Representative filed a Form F54 and therefore ceased to act for the Applicant.
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 Emails, 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] and the Show Cause Emails 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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