Paola Salgado v Complete Staff Solutions
[2023] FWC 2429
•20 SEPTEMBER 2023
| [2023] FWC 2429 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paola Salgado
v
Complete Staff Solutions
(U2023/5639)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 20 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – failure to comply with Directions – applicant requested delay of proceedings until her return from overseas in December 2023 – request for delay refused – Application dismissed
Overview
On 23 June 2023, Ms Paola Salgado (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 the Complete Staff Solutions.
Direction [2] of the Directions issued on 1 September 2023 reads:
“[2] By 4.00pm AEDT on Friday, 15 September 2023, the Applicant must file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their application.”
The Applicant did not comply with Direction [2].
After the Applicant left a telephone message with Chambers on 15 September 2023, at 1:46pm AEST, the Applicant was sent the following email from Chambers:
“Dear Ms Salgado
RE: U2023/5639 - Paola Salgado v Complete Staff Solutions
Chambers has received your request for a callback today. The Deputy President’s preference is for parties to communicate with Chambers in writing, with all parties included, to maintain fair and open correspondence in the matter at all times.
In view of the foregoing, please reply by way of return email with your query outlined in writing.
Yours faithfully
[Associate]”
The Applicant did not respond to the foregoing email.
On 18 September 2023, at 10:30am AEST, the following email (Show Cause Email) was sent to the Applicant:
“Dear Ms Salgado
Re: U2023/5639 - Paola Salgado v Complete Staff Solutions
I refer to the matter above.
Background
On 1 September 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 September 2023, the Applicant must file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of their application.
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 AEST Today, 18 September 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]”
On 18 September 2023, at 3:59pm AEST, Chambers received the following email from the Applicant:
“Dear [Associate],
I would like to let you know that all last week I have been insisting several times on trying to talk to someone from the chambers area. I prefer to talk on the phone directly instead of writing it, since it is easier for me to do it through the phone, despite having left several voice messages and several attempted calls which I have been advised that last Friday they were going to contact me from chambers area department, but unfortunately no one called me back, however today Monday very early in the morning I made several calls again and I even left another voicemail, my genuine intentions in this conversation is to kindly make it clear that earlier this month Sophie Halias sent a direct email to your chambers department asking you politely for an extension (first weeks in December) due to unusual personal things, which was received by you, and the only thing I have tried to do with that information is to check it with you, that is why I have been trying to get someone from the chambers area to contact me by phone to verify the facts of the email sent by Sophie Halias a while ago.
In any case, I am re-sending again to you the email written at the beginning of this month which verifies that you must have received it, since it was sent directly to you.
I am grateful in advance if you please help me with the extension which was already presented to the chambers area.
kind regards Paola S.”
In the foregoing email, the Applicant refers to an email sent from her representative, Ms Sophie Halias, of Sophie Halias HR Consulting, on 6 September 2023, to the Chambers of Vice President Catanzariti (i.e. not the Chambers of Deputy President Boyce), also requesting that any hearing be conducted in the first two weeks of December 2023 because the Applicant is overseas.
On the 18 September 2023, at 6:48pm AEST, the following email was sent from Chambers to the Applicant:
“Dear Ms Salgado
I refer to your email below [18 September 2023, at 3:59pm AEST], and respond on behalf of the Deputy President.
It will not be acceptable (nor possible) for the proceedings (or the hearing) to be stood over until December 2023 when you return from overseas.
These proceedings have been commenced by you. There is thus an obligation upon you to prosecute your case without delay.
The Directions issued on 1 September 2023 (including the dates specified therein) need to be complied with by you.
Today you were sent a Show Cause Email, copy attached. You are provided until 4:00pm AEDT tomorrow 19 September 2023, to comply with the requirements of this email. Failure to do so will result in your proceedings being dismissed without further notice to you.
Yours faithfully
[Associate]”
On the 20 September 2023, Chambers received the following email from the Applicant:
“Dear [Associate]
I am going to kindly ask you to take into account how many times (phone calls, leaving messages, voice messages etc) I have made the effort to try to speak/talk with someone from chambers department since the beginning of this month to determine the necessary and justify extension time required by Sophie Halias (who is located outside the country-Sophie’s email was recently re-sent to you)
As mentioned in the past English is not my first language and I have issues discussing and supplying my case that’s why it was the need to talk to someone just to confirm if the extension was positively granted or not? as all this time I was in the limbo thinking the extension was already granted without problem. However I humbly understand that rules are rules, but I do want to make it very clear that this lack of communication was not my fault, since there has been nothing formal from chambers department in response of Sophie’s request of the time-extension email at the beginning of this month.
In any case, all I have to do is accept being removed from the case.
Thanks.”
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
It is apparent that the Applicant is overseas until December 2023 (or thereabouts) and cannot advance or otherwise prosecute her case whilst overseas. It is the Applicant that has filed a claim for unfair dismissal. Once filed, a claim is progressed by the Commission in accordance with an orderly timetable. If a person chooses (or is required) to go overseas after they have filed their claim, that is a matter for them. It is not a circumstance that ought be visited upon the Commission or a respondent in terms of having proceedings delayed until their return. These are not issues of miscommunication or alike (as asserted by the Applicant). Proceedings before the Commission are not progressed and conducted on the basis of the convenience of the parties. If a party decides or needs to go overseas, and therefore cannot progress their claim, they ought withdraw their claim.
I have decided to dismiss the Applicant’s Application.
In dismissing the Applicant’s Application, I find that the Applicant’s failure to progress her claim on the basis that she is overseas to be wholly unsatisfactory. Further, in taking into account fairness, justice, equity and good conscience, it is not appropriate that any further delay be visited upon the Respondent or the Commission.
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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