Renee Jean Purdy v Nest Maker Pty Ltd

[2023] FWC 583

[2023] FWC 583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Renee Jean Purdy
v

Nest Maker Pty Ltd

(C2022/7147)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 14 MARCH 2023

Application to deal with contraventions involving dismissal – Applicant failed to prosecute her case - application dismissed pursuant to s.587

1. On 25 October 2022, Ms Purdy lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal from her employment with Nest Maker Pty Ltd.

1. The parties attended a conciliation conference conducted by a Commission staff member on 30 November 2022. During the conciliation, the Respondent raised a jurisdictional objection that the Applicant was not an employee but rather an independent contractor. The parties requested a further consideration period following the conciliation, and the application was left open to enable the parties to engage in further discussions to attempt to resolve the matter.

1. On 19 December 2022, the staff conciliator attempted to contact the Applicant by telephone to seek an update on the application. A further attempt was made to contact the Applicant by telephone on 30 January 2023 and a voicemail was left.

1. On 9 February 2023, the staff conciliator sent an email to the parties requesting the Applicant advise whether she wished to proceed with her application by 16 February 2023 and that in the absence of a response, the matter would be referred to a Member of the Commission to deal with the Respondent’s jurisdictional objection.

1. The Applicant did not respond to this email and the application was subsequently allocated to me on 24 February 2023.

1. On 27 February 2023, a notice of listing was sent to the parties advising the application was listed for a mention by Microsoft Teams on 2 March 2023.

1. On 1 March 2023, my chambers sent an email to the Applicant requesting she confirm her attendance at the mention. The Applicant did not respond to this email.

1. On 2 March 2023, at the time of the mention, my chambers made 3 telephone calls to the Applicant and a voicemail was left. An email was also sent to the Applicant requesting that she connect to the mention as soon as possible.

1. On 3 March 2023, a letter was sent to the Applicant regarding her non-attendance at the mention and her failure to respond to any of the attempts by the Commission to contact her since 30 November 2022. The letter advised the Applicant that her application was at risk of being dismissed under s.587 of the Act for want of prosecution, and that if she did not provide reasons as to why her application should not be dismissed by 4:00pm 10 March 2023, that I intend to dismiss her application without further notice.

1. The Applicant did not respond to this letter by the specified deadline and has not otherwise communicated with the Commission as of the date of this Decision.

1. It should be noted that the above communication attempts were all made to the email address and contact number listed on the Applicant’s Form F2, both of which the Commission has used to successfully communicate with the Applicant prior to the conciliation conference.

Consideration

1. Section 587 of the Act sets out the basis on which the Commission may dismiss an application:

“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.”

1. The words “without limiting when the FWC may dismiss an application” in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in ss.587(1)(a), (b) and (c).[1] Section 587 confers a sufficiently broad discretion to allow an application under s.365 to be dismissed for want of prosecution by an applicant, in appropriate circumstances.[2]

1. The Full Bench in Viavattene v Health Care Australia[3] at [39] said:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is a respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

1. Ms Purdy has, without explanation, failed to respond to all attempts by the Commission to contact her since the conciliation conference on 30 November 2022. Ms Purdy was expressly put on notice by way of letter dated 3 March 2023 that a failure to provide reasons for her non-attendance at the mention would result in her application being dismissed without further notice. Ms Purdy did not provide any reasons for her non-attendance or otherwise respond to this letter. I consider that her conduct is inconsistent with that of an applicant who intends to advance their case, and that Ms Purdy has, in effect, abandoned her application. I also consider that it is not appropriate for the Respondent to be subject to further proceedings or costs in this matter.

1. I am satisfied that it is appropriate for me to exercise my discretion and dismiss Ms Purdy’s application under s.587 of the Act for want of prosecution. An order to that effect will be issued separately.

DEPUTY PRESIDENT

[1] Lowe v SC Services Pty Ltd [2023] FWC 519 at [14].

[2] Adam v Zoom Recruitment Industrial WA Pty Ltd [2022] FWC 730.

[3] [2013] FWCFB 2532.

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