Paris Larkham v The Orange Golf Club Ltd
[2023] FWC 2049
•16 AUGUST 2023
| [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 staff conciliation on 16 June 2023; and
· Participate in the conference before me on 17 July 2023.
…
[9] Under s.587(3)(b), the Commission has a general power to dismiss an application for want of prosecution which includes a failure to attend a conference conducted by the Commission.
Directions
[10] The Applicant is directed to attend a conference by video using Microsoft Teams at 3.30PM on Friday 21 July 2023 to explain her failure to attend the conference I convened on 17 July 2023 and to show cause why her application should not be dismissed.
[11] Should the Applicant not attend this hearing without reasonable grounds communicated to my Chambers on or before 5:00 PM on 20 July 2023, the matter will be dismissed.”
At 3:19PM on 21 July 2023 before the show cause hearing, my Chambers attempted to contact the Applicant on her mobile number. A person answered the telephone. The person was asked, “Am I speaking to Paris Larkham?” The person on the phone then said, “Just a second, thank you” and hung up.
At 3:30PM on 21 July 2023, a show cause hearing was held to determine whether the Commission should grant the Respondent’s application that the Application should be dismissed under s.587(3)(b) of the Act. The Respondent and its representative attended the hearing. The Applicant did not.
Relevant Law
Section 587 of the Act provides as follows:
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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 Stewart v Enable Western Australia[2022] FWC 2238, Deputy President Binet provided a relevant analysis of the applicability of this section to this instance, as follows:
“[8] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss an application made pursuant to section 365 per se.
[9] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.
[10] For example, in McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.
[11] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health [2011] FWA 5458 in which she stated:
‘[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.’”
Consideration
The Applicant has not responded to the Commission’s repeated attempts to get in contact with her following her brief appearance at the staff conciliation conference on 16 June 2023. She did not appear at either proceeding, the conference listed for 17 July 2023 or the show cause hearing on 21 July 2023. I have decided to dismiss her application.
Applying the principle of a fair go all round to both employers and employees, I find the Applicant’s failure to participate in the Commission’s processes has required the Respondent to expend resources in responding to a claim that she does not seem to have any intention of following through. Further, taking into account fairness, justice, equity and good conscience, I find the Applicant has been given ample opportunity to make contact with the Commission but has failed to do so.
The Respondent has made an application under s.587(3)(b) seeking that the Application be dismissed. I find the Application should be dismissed. I order it to be dismissed.
An order[1] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Mr Jackson McGrath, of ClubsNSW, appeared for the Respondent.
No appearance was made by Ms Paris Larkham or any person on her behalf.
Hearing details:
21 July 2023
Microsoft Teams
[1] PR765262
Printed by authority of the Commonwealth Government Printer
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