Paris Larkham v The Orange Golf Club Ltd - [2023] FWC 2049

[2023] FWC 2049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Paris Larkham
v

The Orange Golf Club Ltd

(C2023/1940)

COMMISSIONER PERICA

MELBOURNE, 16 AUGUST 2023

Application to deal with contraventions involving dismissal

On 7 April 2023, Ms Paris Larkham (the Applicant) filed an application pursuant to s.365 (the Application) of the Fair Work Act2009 (the Act) alleging the Orange Golf Club Limited (“the Respondent”) contravened the general protections provisions of the Act.

On 4 May 2023, the legal counsel of ClubsNSW, on behalf of the Respondent, filed a Form F8A Employer Response with the Commission raising no jurisdictional objection to the application.

On 15 June 2023, the Applicant was sent a Notice of Listing advising that a conciliation was scheduled with a staff conciliator of the Commission at 12:00 PM on 16 June 2023. A text message was also sent alerting her to the time and date of the conciliation, together with the dial in details.

A staff conciliation occurred on 16 June 2023. After the conciliator made opening comments and sought to hear from the Applicant, the Applicant’s telephone line dropped out. The conciliator made two attempts to call the Applicant back at 12:04 PM and 12:12 PM. The conciliator then left a short “convert to text” message requesting a call back as soon as possible. The Applicant did not return the conciliators calls.

At 4:07 PM on 20 June 2023, an e-mail was sent to the Applicant following up the matter. That e-mail requested confirmation on or before 22 June 2023 that the Applicant wished to continue with the application. No response was forthcoming.

On 28 June 2023, a staff member of the Commission contacted the Applicant on her mobile and left a message regarding the disconnection from the staff conciliation and the possibility of relisting for a future date. The staff member asked the Applicant to ring back urgently and to indicate whether she would like the matter to proceed. The Commission staff member requested a response by close of business on 28 June 2023.

On 6 July 2023, a notice of listing was sent to the parties to participate in a conference convened under s.368 at 10:00 AM on 17 July 2023.

On the morning of Monday 17 July 2023, my Chambers attempted to contact the Applicant twice to advise her of the conference at 10:00 AM, but the Applicant did not return those calls. The conference took place at 10:00 AM. The Respondent and its representative attended the conference. The Applicant did not. Following the conference, the representative of the Respondent made an application that the matter be dismissed under s.587(3)(b) for want of prosecution.

On 17 July 2023, I issued further directions which were sent to the Applicant and the Respondent. Those directions included the following:

“[7] The matter will be listed for a show cause hearing as to why it should not be dismissed under s.587 in light of the Applicant’s unexplained failure to:

· Return to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paris Larkham v The Orange Golf Club Ltd

Details

AGLC: Paris Larkham v The Orange Golf Club Ltd [2023] FWC 2049
Case: [2023] FWC 2049
Decision Date: 16 AUGUST 2023

CaseChat Overview and Summary

Paris Larkham filed an application under section 365 of the Fair Work Act 2009 against The Orange Golf Club Limited, alleging the club contravened the general protections provisions of the Act. The Respondent did not raise any jurisdictional objections to the application. The Applicant's telephone line dropped out during a staff conciliation on 16 June 2023, and she did not respond to attempts to contact her thereafter. The Commissioner issued further directions for the Applicant to explain her failure to attend the conference and show cause why her application should not be dismissed. The Applicant did not attend the show cause hearing on 21 July 2023, and her application was dismissed under section 587(3)(b) of the Act for want of prosecution. The Commissioner found that the Applicant's failure to participate in the Commission's processes required the Respondent to expend resources in responding to a claim that she did not seem to have any intention of following through. The Commissioner ordered that the Applicant's application be dismissed.

Orders