Robyn Janse van Rensburg v Malua Building Co. Pty Ltd (in liq)
[2025] FWC 240
•28 JANUARY 2025
| [2025] FWC 240 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robyn Janse van Rensburg
v
Malua Building Co. Pty Ltd (in liq)
(U2024/12090)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 28 JANUARY 2025 |
Application for an unfair dismissal remedy - s.587 dismissal – repeated failure by Mr Robyn Janse van Rensburg (Applicant) to comply with Commission directions – Applicant unreliable – no contact from Applicant – failure of Applicant to respond to communications – Applicant disengaged and non-responsive – unsatisfactory conduct by Applicant – conduct by Applicant unreasonable – conduct by Applicant wholly unexplained - proceedings dismissed for want of prosecution
On 10 October 2024, Mrs Robyn Janse van Rensburg (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is Malua Building Co. Pty Ltd (in liq) (Respondent).
At 11:23AM AEDT on 18 December 2024, the Respondent company’s liquidator, Mr Bradd William Morelli of Jirsch Sutherland Insolvency Solutions (Liquidator) provided a letter to Chambers via email. The letter confirmed that the Respondent company was in liquidation and that the Liquidator had been appointed on 28 November 2024 (Liquidator Letter).
At 12:48PM AEDT on 18 December 2024, Chambers sent the Applicant the following email attaching the Liquidator Letter:
“Dear Ms Janse van Rensburg,
In light of the email below and the attached document, please advise Chambers on how you wish to proceed given the liquidator appointment. Please do so by no later than 4:00PM tomorrow Thursday 19 December 2024.
Yours faithfully,
[Associate]”
At 3:40PM AEDT on 19 December 2024, the Applicant sent the following email to Chambers:
“Dear [Associate],
At the time of my lodgement/claim with Fair Work Malua Buildling [sic] Co was not in liquidation. I would like you to continue to investigate this procedurally unfair dismissal that I received from Mr Duguid which has also impacted me negatively.
Kind Regards
Robyn Janse van Rensburg”
On 20 December 2024 at 9:33AM AEDT, Chambers sent the following email to the Applicant (the First Directions Email):
“Dear Ms Janse van Rensburg,
I refer to your email response below, and respond on behalf of the Deputy President.
The Liquidator appointed in respect of the Respondent company has advised Chambers that the Respondent will not be engaging or otherwise participating in these proceedings (see letter of 18 December 2024 attached). As such, there will be no “investigation”, and the Respondent will not be filing any evidence or other documents, or attending any hearing.
You should file any evidence and submissions you wish to rely upon at or before 4pm on Friday, 3 January 2024.
A telephone hearing will be conducted on Monday, 24 February 2025, commencing at 10am AEDT. A notice of listing with dial-in details for the hearing will be sent out to you separately.
Any order made by the Commission will need to be taken up with or pursued against the Liquidator, i.e. not the Respondent, and not Mr Duguid.
It is also noted that given you were dismissed during your notice period, the maximum amount of any compensation to be awarded to you would be no more than 2 days’ pay. As your From F2 states, you resigned on 5 September 2024, and were allegedly dismissed on 1 October 2024. If you had not been dismissed as alleged, your notice period would have ended on 3 October 2024 in any event (i.e. 4 weeks after 5 September 2024). The Commission can only award compensation based upon the period to which an employee’s employment would have continued but for their unfair dismissal, in your case, being a total of 2 days.
Yours faithfully,
[Associate]”
The Applicant made no response to the First Directions Email, nor did the Applicant file any materials in accordance with the directions contained therein.
On 13 January 2025 at 3:32PM AEDT, Chambers sent the following email to the Applicant (the Second Directions Email):
“Dear Mrs Janse van Rensburg,
Chambers notes that you have not engaged with [the] email below [see email at paragraph [5] of this decision], nor have you filed submissions or materials in accordance with the direction to do so by 3 January 2025.
Could you kindly advise Chambers of your response to the below, and whether you intend to file any material, by no later than 4:00pm tomorrow, Tuesday 14 January 2025.
Yours faithfully,
[Associate]”
The Applicant did not file any materials in accordance with the Directions contained within the Second Directions Email. The Applicant did reply to the Second Email Directions at 3:32PM on 14 January 2024, as follows:
“Dear [Associate]
In response to your email, I do apologise for not responding. I’ve been unwell and have had limited access to my emails. This is not about the money, put the shortfall of wages and unpaid superannuation aside, this dismissal was procedurally unfair. I was not afforded the opportunity to respond to his allegations. In the past 5 years whilst working for Daryl I was not made aware of any issues regarding my performance within the company.
Daryl's decision to dismiss me on 30/9/2024 may affect my ability to gain further employment. This has not only affected me but my family too. I do not have any further documents to submit as these were submitted when lodging my application prior to the business being liquidated.
I appreciate you investigating this unfair dismissal. At the very least I would like this dismissal to be recorded as resignation and a letter from the company accepting this as a resignation.
Kind regards
Robyn Janse van Rensburg”
On 14 January 2025 at 5:02PM AEDT, Chambers sent the Applicant the following email (the Third Directions Email):
“Dear Mrs Janse van Rensburg,
I refer to your email below [see email at paragraph [8] of this decision].
The Commission has no power to order that your dismissal be recorded as or converted into a resignation, or that the Respondent Company provide you with any letters or other correspondence about your employment or your resignation. The Respondent Company is in liquidation.
Continuing to hearing on 24 February 2025 only upon the basis of the material you have already filed is not an option.
Unfair dismissal proceedings before the Fair Work Commission do not involve any type of investigation. Findings about a dismissal being unfair can only be made on the basis of evidence, and orders can only be made in accordance with the powers conferred by statute. As previously advised, the only compensation able to be awarded to you in this case is two days’ pay, less applicable taxation. The Commission cannot make orders about underpaid wages or other entitlements.
Much of the above has previously been advised to you in Chambers email to you of 20 December 2024 (9:33am) – contained in the email chain below.
You will need to file any evidence and submissions you wish to rely upon at or before 4pm on Friday, 24 January 2025. If you fail to do so, your unfair dismissal proceedings will be dismissed without further notice to you.
Yours faithfully,
[Associate]”
The Applicant made no response to the Third Directions Email.
On 24 January 2025 at 11:21AM AEDT, Chambers sent the following email to the Applicant (the Reminder Email):
“Dear Mrs Janse van Rensburg,
Chambers writes to remind you that your materials for filing are due by 4pm today. Failure to file by the deadline will result in your matter being dismissed.
Yours faithfully,
[Associate]”
The Applicant made no response to the Reminder Email. The Applicant did not file any materials in accordance with the Third Directions Email, nor the Reminder Email.
Legislative Provisions
Section 587 of the Act reads:
“587 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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
As the Applicant has made no attempt to comply with the directions to file materials as contained in the First Directions Email, the Second Directions Email, the Third Directions Email, and the Reminder Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.
In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with the First Directions Email, the Second Directions Email, the Third Directions Email, and the Reminder Email, to be wholly unexplained, and wholly unsatisfactory.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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