Shirley Freestone v JBS Australia Pty Ltd

[2013] FWC 3063

[2013] FWC 3063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shirley Freestone
v
JBS Australia Pty Ltd
(U2013/6189)

COMMISSIONER DEEGAN CANBERRA, 15 MAY 2013

Application for unfair dismissal remedy - Application dismissed pursuant to s.587

[1] Ms Shirley Freestone (the applicant) made an application to the Fair Work Commission (the Commission) on 6 February 2013 alleging that she had been unfairly dismissed by JBS Australia Pty Ltd (the employer)

[2] The applicant and the employer participated in a telephone conciliation which took place on 27 February 2013. As the matter did not settle at conciliation, it was referred for formal proceedings.

[3] On 13 March 2013, Directions were issued. The Directions were sent by post to the home address of the applicant as the applicant advised the Commission that she did not have an email address. The Directions requiried her to file with the Commission and serve on the respondent submissions and evidentiary materials in support of her application by no later than 12pm on Wednesday, 10 April 2013.

[4] A Notice of Listing was sent to the applicant’s home address on 22 March 2013 advising that the arbitration hearing/conference was to take place in Hobart on 21 May 2013. An amended notice of listing was sent on 10 April 2013 which indicated that the conference/hearing was to take place at Launceston on 23 May 2013.

[5] The applicant failed to comply with the Directions issued on 13 March 2013.

[6] An examination of the file shows that from 11 April 2013 numerous attempts have been made to contact the applicant concerning her non-compliance with the directions. On two occasions, a message was left on the applicant’s mobile phone requesting her to contact the Commission.

[7] As no contact was made by the applicant, a letter was sent to her by post on 17 April 2013 advising her to contact the Commission by 24 April 2013, and that failure to do so would, in all likelihood, result in her application being dismissed for want of prosecution.

[8] Given that there was no response to that letter from the applicant a further message was left on her phone advising her that it was an urgent matter and that she should contact the Commission immediately.

[9] Three phone calls (within minutes of each other) were made to my Chambers after hours on the evening of Friday 3 May 2013. No message was left but the applicant’s number was recorded having been the origin of the missed calls. On 6 May 2013, a message was left on the applicant’s phone advising her to call the Commission during office hours and further advising that it was the intention of the Commissioner to dismiss her application unless she contacted the Commission immediately.

[10] On 14 May 2013, the employer’s representative sent a letter to the Commission outlining their numerous attempts to contact the applicant concerning her failure to comply with the Directions issued. The letter further requested that the application be dismissed.

[11] Section 587 of the Fair Work Act 2009 (the Act) provides:

587(1) Without limiting when FWC may dismiss an application, FWA 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.

587(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under s.365 or s.773 on the ground that it is:

(a) frivolous or vexatious; or

(b) has no reasonable prospect of success

587(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application

[12] As a consequence of the applicant’s failure to pursue her application or advise the Commission of her reasons for her failure to comply with the Directions, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. I note that s.587(1) does not limit the circumstances in which the Commission may dismiss an application. An order [PR536938] dismissing the application is published separately.

COMMISSIONER

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<Price code A, PR536937 >