Stewart v Enable Western Australia - [2022] FWC 2238

[2022] FWC 2238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mrs Jasmine Lee Stewart
v

Enable Western Australia

(C2022/2088)

DEPUTY PRESIDENT BINET

PERTH, 23 AUGUST 2022

Application to deal with contraventions involving dismissal

On 30 March 2022 Mrs Jasmine Lee Stewart (Mrs Stewart) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Enable Western Australia (Enable WA) contravened the general protection provisions of the FW Act.

On 20 April 2022, Enable WA filed a Form F8A – Response to a General Protections Application alleging that Mrs Stewart was not dismissed by Enable WA (Jurisdictional Objection).

A conciliation conference with a Staff Conciliator of the Fair Work Commission was listed on 8 July 2022, however the conference did not proceed due to non-attendance of the Mrs Stewart.

On 9 August 2022, directions were issued to the Parties (Directions). Paragraph [6] of the Directions, required Mrs Stewart to file with the FWC and serve on Enable WA by 4pm on Tuesday 16 August 2022 an outline of submissions, any evidence on which she relied and copies of any authorities on which she relied in relation to the Jurisdictional Objections. The Directions stated that compliance with the Directions was mandatory and that a failure to comply may disadvantage the party concerned.

Mrs Stewart failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions.

On 17 August 2022, Chambers wrote to Mrs Stewart noting that she had failed to comply with the Directions and inviting her to provide by 4pm (AWST) Monday 22 August 2022 reasons why the FWC should not dismiss the Application pursuant to section 587 of the FW Act.

Section 587 of the FW 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.”

Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v Enable Western Australia

Details

AGLC: Stewart v Enable Western Australia [2022] FWC 2238
Case: [2022] FWC 2238
Decision Date: 23 AUGUST 2022

CaseChat Overview and Summary

Mrs Jasmine Lee Stewart brought an application to the Fair Work Commission (FWC) against Enable Western Australia, alleging that she was dismissed in a manner that contravened the Fair Work Act 2009 (FW Act). Enable WA responded by asserting that Mrs Stewart was not dismissed by them, raising a jurisdictional objection. The case was scheduled for conciliation, but Mrs Stewart did not attend, leading to further directions being issued for her to submit her evidence and arguments by a specified date. Mrs Stewart did not comply with these directions, and despite being given a second chance to explain her non-compliance, she failed to do so. Consequently, the Deputy President considered dismissing the application under section 587 of the FW Act for want of prosecution.

The legal issue before the court was whether the FWC could dismiss Mrs Stewart's application due to her failure to comply with the Commission's directions and her lack of engagement in the proceedings. The Deputy President examined whether the dismissal of the application would be justified under section 587 of the FW Act, considering the principles of fairness, justice, and the efficient use of the FWC's resources. Given the precedent that the FWC has the authority to dismiss applications for non-compliance with its directions and the absence of any reasonable prospects of success, the Deputy President weighed these factors in reaching a decision.

The Deputy President found that Mrs Stewart's repeated non-compliance with the FWC's directions and her failure to engage in the proceedings warranted the dismissal of her application. The Deputy President noted that the FWC must perform its functions in a manner that is fair and just, and the dismissal of the application was deemed appropriate to uphold the integrity of the process and to avoid unnecessary expenditure of the FWC's resources. The Deputy President concluded that Mrs Stewart's application should be dismissed for want of prosecution, as she had not taken the necessary steps to participate in the proceedings as required.

An order was made to dismiss Mrs Stewart's application, effectively extinguishing her right to pursue the claims she had made against Enable Western Australia under the FW Act. This decision underscored the importance of adhering to the FWC's directions and the consequences of failing to engage in the proceedings as required.

Orders