Sherri Lee-Anne Campbell v Alpine Medical Practice Pty Ltd
[2023] FWC 1493
•22 JUNE 2023
| [2023] FWC 1493 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sherri Lee-Anne Campbell
v
Alpine Medical Practice Pty Ltd
(C2023/1749)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 22 JUNE 2023 |
Application to deal with contraventions involving dismissal
On 21 March 2023, Ms Sherri Lee-Anne Campbell made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Respondent to this application is Alpine Medical Practice Pty Ltd (the Respondent). The matter was allocated to Chambers on 7 June 2023.
Having been dismissed on 13 February 2023, the Applicant was advised that a general protections application involving dismissal must be lodged within 21 days of a dismissal taking effect, and unless the Commission is satisfied that exceptional circumstances exist and an extension should be granted, the Commission cannot deal with the Applicant’s application.
The matter was programmed for hearing to determine the extension of time issue. However, the Applicant failed to comply with the directions issued and as a consequence the Applicant was placed on notice that her continued non-compliance could result in the dismissal of her application.
In the absence of any objection from the parties and in circumstances where the Applicant has proved uncontactable since Thursday, 15 June 2023, I considered it appropriate to determine the matter on the papers. For the reasons that follow, I have decided to dismiss the Applicant’s application pursuant to s 587 of the Act. An Order[1] to that effect issues concurrently with this decision.
Background
Because there was a dispute about whether an extension of time should be granted, on 7 June 2023, a notice of listing was issued for a hearing at 11:30 AM on Tuesday, 27 June 2023, and directions were issued for the filing of materials. The Applicant was required to file her materials by 4:00 PM on Wednesday, 14 June 2023.
By Thursday, 15 June 2023, the Applicant’s materials in support of her argument for an extension of time had not been filed. By email dated 15 June 2023 time stamped 8:20 AM, the Applicant was advised of her non-compliance and directed to file an explanation and seek an extension of time in which to file her materials, by 4:00 PM on Thursday, 15 June 2023. In addition, the Applicant was called at 8:22 AM on that same day, and whilst a voicemail was unable to be left, a text message was sent of Chambers’ telephone number. At 10:18 AM on Thursday, 15 June 2023, Chambers received a telephone call from the Applicant. It was explained to the Applicant that she was required to respond to the email that had been sent by Chambers earlier that morning. The Applicant indicated that she had not seen the directions as she only checked her personal email every few days as she had commenced in a new role. Having informed the Applicant what was required from her, the Applicant advised Chambers that she wished to discontinue her application. The Applicant was advised to review the emails sent from Chambers and then consider whether she would wish to proceed or not. It was noted that Chambers would not action her discontinuance when provided in the heat of the moment. The Applicant advised Chambers she would think about it and reply to the email sent earlier in the day.
By Friday, 16 June 2023, no response had been received by the Applicant notwithstanding telephone calls being placed with her at 8:08 AM and 1:31 PM that day. At 3:47 PM, Chambers issued directions regarding the potential dismissal of the Applicant’s application. The Applicant was required to file materials by 4:00 PM on Tuesday, 20 June 2023.
On Monday, 20 June 2023, Chambers telephoned the Applicant at 8:41 AM and 1:49 PM to alert her to the directions, to no avail.
On Wednesday, 21 June 2023, an email was sent at 8:34 AM notifying the parties of the Applicant’s non-compliance with the directions issued on 16 June 2023. Telephone calls were placed with the Applicant at 8:34 AM and 4:39 PM, again to no avail.
Consideration
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.
In the decision of McLeod v Kulgera Trading Company Pty Ltd, the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act.[2] In doing so, the decision of Commissioner Gooley (as she then was) in Tomas v Symbion Health (Tomas) was relied upon and reference was made to the following passages regarding the operation of s 587:
[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) 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.[3]
While apparent that the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out in s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365.[4]
In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[w]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss 587(1)(a), (b) or (c).
I have decided to dismiss the Applicant’s application for the following reasons.
The Applicant has demonstrated non-compliance with the directions of this Commission on multiple occasions. Further, the Applicant did not seek an extension of time in which to file her materials prior to them falling due to be filed. This is against a backdrop where the parties were provided with clear directions detailing what was required of them, in addition to having been advised of potential consequences for non-compliance.
The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission on its own initiative.[5] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[6]
Ultimately, the Applicant bears the responsibility of prosecuting her case and complying with the directions of this Commission. At all material times, it was open to the Applicant to notify the Commission in a timely manner of extension requests or adjournment requests and to provide evidence in support of those requests. It is not onerous or unfair to require such conduct in proceedings. It minimises both the disruption to the programming of matters and prejudice towards another party who is expending time and resources responding to documentation filed, preparing for a conference or hearing and attending the same.
The Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. One is also always guided by the principle that the power to dismiss a substantive application should only be exercised cautiously and sparingly.[7] A cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[8]
However, in all the circumstances, I am satisfied that the Applicant was aware of what was required of her regarding compliance with the directions given that time had been taken to explain to the Applicant the process and importance of compliance. In my view, the Applicant disregarded the directions issued, such that it cannot be said that she is pursuing her application with the attention deserved. The Applicant’s action has effectively derailed the programming of the matter in the absence of plausible excuse supported by evidence and has inevitably required the Commission to expend resources and time because of her conduct. This situation was avoidable had the Applicant accepted what was required of her in prosecuting her case and acted accordingly.
Conclusion
I have concluded that ‘fairness, justice, equity and good conscience’ warrants the exercise of the discretion under s 587(1) of the Act for the dismissal of this application for want of prosecution.
DEPUTY PRESIDENT
Matter determined on the papers.
[1] PR763476.
[2] [2014] FWC 2112.
[3] [2011] FWA 5458, [57]–[58].
[4] See, e.g, Hawes v Plastic Planet Pty Ltd[2014] FWC 6457; Guest v Waddell Family Investments Pty Ltd [2014] FWC 4607.
[5] Fair Work Act 2009 (Cth) s 587(3)(a).
[6] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[7] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[8] Ibid.
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