Sally James v Food Supplements International Pty Ltd

[2023] FWC 1761

[2023] FWC 1761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sally James
v

Food Supplements International Pty Ltd

(C2023/3326)

DEPUTY PRESIDENT BOYCE SYDNEY, 19 JULY 2023

Application to deal with contraventions involving dismissal

Background

1. On 8 June 2023, Ms Sally James (Applicant) filed an Application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Ms James commenced employment with Food Supplements International Pty Ltd (Respondent) on 1 March 2016 and claims to have been dismissed with effect from 15 May 2023.

1. The Respondent raised an objection that the Application had been filed out of time, and noted that the Applicant had been dismissed by reason of genuine redundancy.

1. The matter was allocated to my Chambers on 6 July 2023. A notice of listing and directions were issued to the parties on 10 July 2023, with the matter listed for hearing to resolve the out of time jurisdictional objection on 4 August 2023 at 10:30am AEST.

1. Direction [1] of the Directions issued 10 July 2023 read as follows:

“[1] By 4.00pm AEST on Monday, 17 July 2023, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.”

1. Chambers received no correspondence from the Applicant in compliance with Direction [1].

1. On Tuesday, 18 July 2023, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further directions for the Applicant 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 AEST Today, 18 July 2023.”

1. Later that day, at 1:59pm, the Applicant responded as follows:

“Dear [Associate]

I would like to continue to press this matter, please advise how I file with the Commission?”

1. By reply email at 2:21pm an email was sent from my Chambers to the Applicant indicating that materials were to be filed by reply email to Chambers, providing links to resources on the Commission’s website in relation to preparation for conferences and hearings, and reminding the parties of the importance of open correspondence between parties and the Commission.

1. Chambers received no further response to the Show Cause Email.

Legislative Provisions

1. Section 587 of the Act provides as follows:

“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.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and 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.”i

Consideration

1. As the Applicant has made no attempt to comply with the Show Cause Email, and has failed to explain her non-compliance, I have decided to dismiss her Application.

1. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-compliance with issued Directions is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or prosecute her case, and/or contact the Commission to explain her non-compliance, but has instead (including by her silence) expressed a clear disinterest in process, procedure and the prosecution of her own case.

1. 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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