Renata Fracari Guinsburg v Max Solutions Pty Ltd
[2023] FWC 2001
•10 AUGUST 2023
| [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 prosecution under s587 of the FW Act. The Respondent attended this hearing. The Applicant did not
Relevant Law
Section 587 of the FW Act provides as follows:
“Dismissing applications.
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 contact her. She did not appear at either: the staff conciliation on Monday 17 July, the conference on Thursday 3 August or, the show cause hearing on Thursday 10 August. 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 responding to a claim the Applicant does not seem to have any intention of following through. Further, considering fairness, justice, equity, and good conscience, I find the Applicant has been given ample opportunity to contact the Commission but has failed to do so.
The Respondent has made an application under s587(3)(b) seeking that the Application be dismissed. I find the Application should be dismissed.
An Order[1] to this effect is issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
Ms Rachel Chapman-McCowan of Max Solutions Pty Ltd
Hearing details:
Melbourne
10 August
[1] PR765098
Printed by authority of the Commonwealth Government Printer
<PR765097>
0