Stacey Lee Layt v Fresh Made Management Pty Ltd T/A Made Fresh

[2018] FWC 2930

[2018] FWC 2930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stacey Lee Layt
v
Fresh Made Management Pty Ltd T/A Made Fresh
(U2018/1332)

DEPUTY PRESIDENT BULL SYDNEY, 25 MAY 2018

Application for an unfair dismissal remedy – application dismissed for want of prosecution

[1] On 12 February 2018 Ms Stacey Layt (the applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with Fresh Made Management Pty Ltd T/A Made Fresh (the respondent).

[2] In the Form F2 Unfair Dismissal Application (Form F2) filed by the applicant, she provided a contact mobile number and email address. I note that no alternate contact details were provided by the applicant in the Form F2, nor have any been provided since.

[3] The matter was listed for conciliation before a Commission conciliator on 7 March 2018. However at the time scheduled for the conciliation the applicant was unable to be contacted on the number she provided to the Commission on the Form F2. She had not responded to requests from the Commission prior to the conciliation conference to confirm her contact details.

[4] On 13 March 2018 the chambers of Deputy President Dean sent the applicant a letter via the email address she had provided the Commission on the Form F2. That correspondence requested that the applicant, in light of the fact she had been uncontactable, confirm within 7 days whether she wished to continue with her application.

[5] On 19 March 2018 the applicant replied to Deputy President Dean’s chambers by email indicating that she ‘definitely’ wished to continue with her application. She apologised for being uncontactable.

[6] The matter was allocated to my chambers and was listed for Mention, by telephone, on 28 March 2018. However both parties contacted my chambers to advise they were unavailable to attend the Mention at that time. I note that the applicant’s email to my chambers in this regard, sent on 23 March 2018, also confirmed the mobile number she provided on the Form F2 was correct.

[7] As both parties were unavailable to participate in the telephone Mention, the parties were advised by email on 23 March 2018 that directions and a date for hearing would be listed. The Directions and a Notice of Listing for hearing on 28 May 2018 were dispatched to the parties on the same day.

[8] The Directions issued required the applicant to file material in support of her claim by 13 April 2018. However no material was filed by the applicant and she made no contact with my chambers to explain why she had not complied with the Directions, or to request an extension.

[9] On 30 April 2018 Ms Alex contacted my chambers seeking guidance on whether the respondent was required to file material in the absence of any material from the applicant.

[10] Later that day my chambers made three attempts to call the applicant on the mobile number provided. On each occasion there was no answer and no option to leave a message. An email was sent to the applicant by my chambers later on the same day. That email confirmed that unsuccessful attempts had been made to contact the applicant by telephone, noted she had failed to comply with the Directions issued, and requested she advise urgently as to when she intended to file material in support of her claim. The email also stated that if no response was received by 4:00pm, 7 May 2018 the application may be dismissed.

[11] The applicant did not reply to the email sent to her on 30 April 2018. On 8 May 2018 my chambers called the applicant’s mobile number twice; however, again, on each occasion there was no answer and no opportunity to leave a message.

[12] Around 10:30am on 10 May 2018 my chambers was able to contact the applicant on her mobile number. She indicated she was unaware of any email correspondence being sent to her. When she was advised that several attempts had been made to contact her by telephone she denied receiving any notifications of having missed calls. She indicated that if attempts had been made to contact her between 9am and 5pm on week days she would not be able to answer as she would be at work. It was made clear to the applicant that she was required to respond to the email correspondence previously sent to her by that afternoon.

[13] No further response was received from the applicant. On 14 May 2018 my chambers sent a further email to the applicant requiring her to immediately advise whether she wished to continue with her application and if so, provide an explanation as to why she had not complied with the Directions issued.

[14] Noting the applicant’s stated difficulty with answering her phone during business hours, my chambers attempted to contact the applicant three times prior to 9:00am on 15 May 2018 and twice after 5:00pm on 17 May 2018. As in previous instances, there was no answer and no option to leave a message.

[15] On 24 May 2018 my chambers sent a further email to the applicant advising her that unless she confirmed by 3:00pm on 25 May 2018 that she wished to pursue her application, and advised why she had not complied with the Directions issued, her application would be dismissed. The applicant did not make any contact with my chambers by that time.

Dismissing applications

[16] 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.”

[17] The words ‘without limiting when the FWC may dismiss an application’ in s. 587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in s.587(1)(a), (b) and (c).

[18] The Full Bench in L. Sayer v Melsteel Pty Ltd 1 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

Consideration

[19] Having been put on notice on two occasions that without further response her application may be dismissed, the applicant has had considerable time to inform the Commission whether she wishes to pursue her application and provide an explanation for not complying with the Directions.

[20] I note that on 10 May 2018 the applicant did indicate she was not aware of any correspondence having being sent by the Commission. However the email address provided by the applicant has been used in all the attempts made to contact her via email. The applicant has also twice replied to emails sent by the Commission to that email address (on 19 March 2018 and again on 23 March 2018).

[21] The applicant also indicated on 10 May 2018 that she had not received notifications of missed calls on the mobile number she provided the Commission. However, even if this is correct, I am satisfied that at a minimum the applicant was clearly informed on 10 May 2018 that she was required to attend to email correspondence from the Commission as a matter of urgency. Having been made aware of the importance of attending to that correspondence, the applicant has not made any subsequent contact with my chambers and has been uncontactable, even when attempts have been made to call her outside business hours. The applicant has been put on notice that a failure to comply with Directions without a satisfactory explanation may lead to her application being dismissed without further notice.

[22] Based on the circumstances outlined above, I am satisfied the applicant has failed to prosecute her application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution.

DEPUTY PRESIDENT

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 1   [2011] FWAFB 7498 at [19].