Renata Fracari Guinsburg v Max Solutions Pty Ltd - [2023] FWC 2001

[2023] FWC 2001

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Renata Fracari Guinsburg
v

Max Solutions Pty Ltd

(C2023/3334)

COMMISSIONER PERICA

MELBOURNE, 10 AUGUST 2023

Application to deal with contraventions involving dismissal-applicant non-responsive-application dismissed

On 8 June 2023 Ms Renata Fracari Guinsburg (the Applicant) made an application to deal with contraventions involving dismissal under s.365 of the Fair Work Act 2009 (the Act) in relation to her employment with Max Solutions Pty Ltd (the Respondent).

Procedural history

On 17 July 2023, a staff conciliation was to be held by telephone The Respondent attended but the Applicant did not. A staff member of the Commission attempted to contact the Applicant four times between 2.15 PM and 2.50 PM that day but received no response.

On 18 July 2023, an e-mail was sent to the Applicant seeking her confirmation that she wished to continue with her matter. There was no reply to that e-mail.

On 24 July 2023, the Applicant was contacted on her mobile phone by a staff member of the Commission and left a message. No response was received.
On 25 July 2023, a Notice of Listing was issued from my Chambers to the Applicant’s e-mail address for a conference at 4.00 PM on 3 August 2023.
At 3.59 PM on 3 August 2023, moments before the conference, my Chambers contacted the Applicant. The Applicant answered the call. She informed my Chambers that she could not attend the conference that day but still wished to pursue the matter.
On Thursday 3 August 2023 at 4.00 PM the conference was held. The Respondent attended the conference. The Applicant did not. Following the conference, I issued further directions which were sent to the Applicant and the Respondent. Those directions included the following:
[10] 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.

[11] The Applicant is directed to attend a show cause hearing/conference by video using Microsoft Teams at 4.00 PM on Thursday, 10 August 2023 to explain her failure to attend the conference I convened on 3 August 2023 and to show cause why her application should not be dismissed for want of prosecution.
[12] ….

[13] Should the Applicant not attend this hearing without reasonable grounds communicated to my Chambers on or before 5:00 PM on Wednesday, 9 August 2023, the matter will be dismissed.

Following the conference on Thursday 3 August the Respondent made an application under s587(3)(b) of the FW Act that the application be dismissed for want of prosecution.

Between 4 August and 9 August 2023 my Chambers attempted to contact the Applicant three times, each time leaving telephone messages alerting her to the notice of listing and the show cause hearing on 10 August 2023.

At 4.00 PM on Thursday 10 August 2023 a show cause hearing was held to determine whether the application should be dismissed for want of…

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 Renata Fracari Guinsburg v Max Solutions Pty Ltd

Details

AGLC: Renata Fracari Guinsburg v Max Solutions Pty Ltd [2023] FWC 2001
Case: [2023] FWC 2001
Decision Date: 10 AUGUST 2023

CaseChat Overview and Summary

Renata Fracari Guinsburg lodged an application under section 365 of the Fair Work Act 2009 against Max Solutions Pty Ltd alleging contraventions involving her dismissal. The application was made on 8 June 2023. The applicant was required to participate in the Fair Work Commission's processes, including attending a staff conciliation on 17 July 2023, a conference on 3 August 2023, and a show cause hearing on 10 August 2023. The applicant did not attend any of these processes despite multiple attempts by the Commission to contact her.

The legal issue before the Commission was whether the applicant's failure to participate in the Commission's processes warranted the dismissal of the application under section 587(3)(b) of the Fair Work Act 2009. The Commission considered whether the applicant's lack of participation in the processes constituted a failure to prosecute the application, and if so, whether this justified the dismissal of the application. The Commission noted that under section 587(3)(b), the Commission has the power to dismiss an application for want of prosecution, including a failure to attend a conference conducted by the Commission.

The Commission found that the applicant had not responded to multiple attempts by the Commission to contact her and had failed to participate in the Commission's processes. The Commission held that the applicant's failure to participate in the Commission's processes required the respondent to expend resources responding to a claim that the applicant did not seem to have any intention of following through. The Commission further found that the applicant had been given ample opportunity to contact the Commission but had failed to do so. In light of these findings, the Commission decided to dismiss the application.

The Commission issued an order dismissing the application in light of the applicant's failure to prosecute the application. The order was issued in conjunction with the publication of the decision.

Orders