Robyn Sutherland v Bungree Aboriginal Association Ltd
[2024] FWC 711
•19 MARCH 2024
| [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
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