Sarah Love v Charles Taylor Adjusting (Australia ) Pty Ltd

[2024] FWC 618

[2024] FWC 618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sarah Love
v

Charles Taylor Adjusting (Australia ) Pty Ltd

(U2024/199)

DEPUTY PRESIDENT DOBSON BRISBANE, 8 MARCH 2024

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application by Ms Sarah Love pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Charles Taylor Adjusting (Australia) Pty Ltd.

1. On 23 February 2024, I issued directions for the filing of material to deal with the potential jurisdictional issue that the Application may have been filed outside the timeframe prescribed by s.394(2) of the Act. The directions were amended on 26 February 2024 and included both the date and time for the conference and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 1 March 2024.

1. The matter was listed for a conference, by telephone, on 29 February 2024. Ms Love did not appear at the conference. Ms Princess Gerona appeared on behalf of the Respondent.

1. At the commencement of the conference, my Associate contacted the Applicant on the contact number provided by the Applicant on her Form F2. A voicemail message was left instructing the Applicant to answer the next call. Two further attempts to contact the Applicant on the telephone number were made and an SMS message was issued from my Chambers. As at the date of this decision, Ms Love has not responded to those messages.

1. That same day, the following email was sent from my Chambers to Ms Love:

“Dear Ms Love

A conference was listed before the Deputy President at 2:15pm (AEST) today and you have failed to attend. The contact number provided by you on your Form F2 Application was contacted several times and a text message was issued reminding you of your obligation to attend.

The Deputy President is considering whether your unfair dismissal application should be dismissed in accordance with s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.

If you wish to proceed with your application, you must make contact with Chambers by way of email by no later than 4:00pm (AEST) on 1 March 2024 and provide the reasons for your failure to attend. Any reason must be supported by sufficient evidence and must be copied to the Respondent. You are reminded that your material in relation to the extension of time for your application is also due to be filed by no later than 4:00pm (AEST) on 1 March 2024.

In the absence of a response from you, your application may be dismissed without further notice to you.

Alternatively, if you do not wish to proceed with your application, you can reply by email that you wish to discontinue the application. You may alternatively submit a Form F50 – Notice of Discontinuance.

Finally, should the Respondent file according to s 399A of the Act, the Deputy President will be required to consider whether the matter be dismissed.

…”

1. No response from Ms Love was received by my Chambers. The Respondent contacted my Chambers by email formally seeking that the matter be dismissed.

1. On 4 March 2024 at 9:55am (AEST), the following email was sent from my Chambers to Ms Love:

“Dear Ms Love

It is noted that we did not receive a response to our correspondence. It is the Deputy President’s current view that your unfair dismissal application should be dismissed pursuant to s.587 of the Fair Work Act 2009 (Cth) on the basis of your failure to prosecute your unfair dismissal claim. The Respondent has also formally requested that the matter be dismissed, please see the below email.

If you wish to proceed with your unfair dismissal application, you must make contact with us by 4:00pm (AEST/QLD) today. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email ([email protected]) or by telephone [phone].

I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission website.

Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application.”

1. Again, no response from Ms Love was received by my Chambers at the time of writing this decision. The Applicant also failed to file the material as directed.

1. In light of Ms Love’ failure to appear at the conference and her failure to take any steps to prosecute or pursue her unfair dismissal claim, together with the absence of any communication from Ms Love, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss Ms Love’s unfair dismissal application against the Respondent in these proceedings. The application is therefore dismissed.

DEPUTY PRESIDENT

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