Simmon Sleiman v The Trustee for Ethical Lending Concepts Unit Trust

[2023] FWC 1518

[2023] FWC 1518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Simmon Sleiman
v

The Trustee for Ethical Lending Concepts Unit Trust

(U2023/3210)

COMMISSIONER BISSETT MELBOURNE, 27 JUNE 2023

Application for an unfair dismissal remedy

1. On 17 April 2023 Ms Simmon Sleiman made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Sleiman alleges she was unfairly dismissed by The Trustee for Ethical Lending Concepts Unit Trust (Respondent) on 10 April 2023.

1. The file was allocated to me to determine whether the dismissal was unfair pursuant to s.394 of the FW Act.

1. On 9 June 2023 I issued directions in which I required Ms Sleiman to file with the Commission and serve on the Respondent an outline of submissions (in addition to that included in her application), witness statements and any other documentary evidence which she intended to rely in support of her application by 30 June 2023. The Respondent was required to serve on the Applicant an outline of submissions, witness statements and any other documentary evidence which it intended to rely in response to the Application by 21 July 2023. Ms Sleiman, if she wished, was then required to file with the Commission and serve on the Respondent any evidence and submissions in reply by 28 July 2023.

1. The application was listed for Case Management Conference on 15 June 2023 and subsequently, a hearing on 7 August 2023 and 8 August 2023.

1. While Ms Sleiman did not confirm her attendance at the Case Management Conference, my associate nevertheless attempted to contact her at the scheduled time. Ms Sleiman did not answer her nominated phone number when called in the lead up to the Case Management Conference or immediately before the Case Management Conference. 

1. Given her non-attendance at the Case Management Conference and failure to contact the Commission despite messages left for her, my chambers wrote to Ms Sleiman on 15 June 2023 and asked her to confirm if she wished to continue with her application. This email to Ms Sleiman noted that should Ms Sleiman fail to respond to correspondence Commissioner Bissett will consider dismissing her application because of a failure to participate in a Case Management Conference or to respond to correspondence.

1. A further email was sent to Ms Sleiman on 21 June 2023. That email asked Ms Sleiman for any submissions as to why her application should not be dismissed given her failure to engage in the process and to confirm that she intended to continue with her application. Ms Sleiman asked to provide any submissions on this question by 22 June 2023 to respond. Ms Sleiman has not responded to that email.

1. Section 587 sets out when the Commission may dismiss an application. it provides:

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 prospect of success.

1. The Commission is not limited by s.587(1) as to the grounds on which it might consider dismissing an application. In this case Ms Sleiman has failed to engage in the process in relation to her application beyond the staff conciliation that took place 8 June 2023. Although Ms Sleiman indicated that she wished to pursue her application in the Staff Conciliation, she has since failed to attend the Case Management Conference or respond to any written correspondence from the Commission.

1. Ms Sleinman was also advised in correspondence how she could discontinue her application if she no longer wished to continue. She has not availed herself of this opportunity either.

1. The Commission is required to perform its functions in a way that is fair and just, and quick and informal. Ms Sleiman’s failure to engage in the prosecution of her claim, despite all attempts to allow her to do so has resulted in unwarranted delay. Further, Ms Sleiman has given no indication in action or words that she intends to engage with the process she commenced and pursue her application at any time in the foreseeable future.

1. In these circumstances I consider it appropriate to exercise my discretion to dismiss the application of Ms Sleiman in accordance with s.587(1) of the FW Act. I do so as Ms Sleiman has unreasonably refused to engage with the Commission in relation to her application and I do not consider that she will do so in the future.

1. The application is therefore dismissed.

COMMISSIONER
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