Robyn Sutherland v Bungree Aboriginal Association Ltd

[2024] FWC 711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robyn Sutherland
v

Bungree Aboriginal Association Ltd

(U2024/35)

DEPUTY PRESIDENT BOYCE

SYDNEY, 19 MARCH 2024

Application for an unfair dismissal remedy – failure to comply with Directions – Application dismissed

Overview

On 2 January 2024, Ms Robyn Sutherland (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 the Bungree Aboriginal Association Ltd.

Direction [2] of the Directions issued on 29 February 2024 reads:

“[2] By 4.00pm AEDT on Thursday, 14 March 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim.”

The Applicant did not comply with Direction [2].

On 15 March 2023, at 8:57am AEDT, the following email (Show Cause Email) was sent to the Applicant:

“Dear Ms Sutherland
Re: U2024/35 - Robyn Sutherland v Bungree Aboriginal Association Ltd
I refer to the matter above.
Background
On 29 February 2024, the Fair Work Commission issued Directions in this matter.
Orders [2] of those directions read as follows:
[2] By 4.00pm AEDT on Thursday, 14 March 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim.
To date, Chambers has not received any materials in compliance with Order [2].
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 15 March 2024.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.
Yours faithfully
[Associate]”

At 5:50pm on 18 March 2024, the Applicant responded (via email) to the Show Cause Email and advised that she had chosen not to comply with Directions, but made no submissions as to why these proceedings ought not be dismissed.

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 Direction [2] and/or the substance of the Show Cause Email, I have decided to dismiss their Application.

In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [2], and her failure to provide a response to the substance of the Show Cause Email, is wholly unsatisfactory and unjustified.

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

Printed by authority of the Commonwealth Government Printer

In Robyn Sutherland v Bungree Aboriginal Association Ltd, Robyn Sutherland filed an application for an unfair dismissal remedy against the Bungree Aboriginal Association Ltd under section 394 of the Fair Work Act 2009. The matter was before the Fair Work Commission, where the Deputy President Boyce was tasked with deciding whether the application should proceed. The Applicant was required to file an outline of submissions, witness statements, and supporting documents by a specified deadline, but failed to comply with this directive. Consequently, the Deputy President issued a Show Cause Email, requesting the Applicant to explain why the matter should not be dismissed. The Applicant responded by stating that she chose not to comply with the direction, but did not provide any justification for her non-compliance or why the proceedings should continue.

The primary legal issue in this case was whether the Applicant's failure to comply with the Fair Work Commission's directions warranted the dismissal of her application under section 587 of the Fair Work Act. The Deputy President had to consider whether the Applicant's non-compliance was justifiable and whether the application had reasonable prospects of success if it were to proceed. The decision hinged on the interpretation of section 587, particularly the authority of the Fair Work Commission to dismiss applications that are not prosecuted in accordance with the Act or are otherwise unsatisfactory.

In dismissing the Applicant's application, Deputy President Boyce found that the Applicant's non-compliance with the directions and her failure to respond to the Show Cause Email were wholly unsatisfactory and unjustified. The Deputy President concluded that the application was dismissed for want of prosecution, in accordance with section 587(3)(a) of the Act. The Applicant's decision not to comply with the directions, coupled with her lack of justification, led to the dismissal of the application. The Deputy President also noted that the Fair Work Commission has the power to dismiss matters for reasons beyond those specified in section 587(1), reinforcing the Commission's authority in this matter.

The Fair Work Commission issued an order dismissing the Applicant's application for an unfair dismissal remedy. The dismissal was based on the Applicant's non-compliance with the Commission's directions and her failure to provide any justification for her actions. The decision underscores the importance of adhering to procedural requirements in the Fair Work Commission and highlights the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established