Sheree Ellen Hubbard v LDC Ginning Moree Pty Ltd

[2023] FWC 48

[2023] FWC 48

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sheree Ellen Hubbard
v

LDC Ginning Moree Pty Ltd

(U2022/11229)

DEPUTY PRESIDENT BOYCE SYDNEY, 6 JANUARY 2023

Application for an unfair dismissal remedy

Background

1. On 23 November 2022, Ms Sheree Ellen Hubbard (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). Ms Hubbard commenced employment with LDC Ginning Moree Pty Ltd (Respondent) on 3 March 2022 and was dismissed on 17 October 2022.

1. The matter was allocated to my Chambers on 19 December 2022. A notice of listing and directions were issued to the parties on 20 December 2022, with the matter listed for Hearing to deal with the Application on 25 January 2023.

1. Order [1] of the Directions issued 20 December 2022 read as follows:

“[1] By 4.00pm AEDT on Thursday, 5 January 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. On Tuesday, 3 January 2023, at 10.29am, the Applicant sent an email to Chambers requesting an extension of time:

“Dear Associate,

I am writing in relation to the above matter and am wanting to request an extension on time as on the 27th December 2022, an immediate family member (my father whom I live with) fell terminally ill and I've been unable to respond as required as I've been and still am in Newcastle.

Kind Regards

Sheree Hubbard”

1. By reply email later that day at 11.10am, the extension request was refused:

“Dear Parties

RE: U2022/11229 - Sheree Ellen Hubbard v LDC Ginning Moree Pty Ltd

I refer to the above matter and correspondence below.

The Deputy President advises that the request for an extension (to the current Directions) is not supported by evidence or reasons identifying the basis upon which an extension ought be granted.

The Applicant is to comply with Direction [1] of Directions issued on 20 December 2022.

Yours faithfully

Associate to Deputy President Boyce”

1. On Friday, 6 January 2023, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions.

1. The Applicant was notified in the Show Cause Email that “if the Applicant does not comply with Order [1] above by 4.00pm Today, 6 January 2023, the matter may be dismissed without further notice.”

Legislative Provisions

“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.”[1]

Consideration

1. As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting her case, or to explain her non-compliance with directions, 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 repeated non-compliance with directions is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to 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. 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

[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

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