Sylvia Wallam v Catholic Health Care Limited

[2023] FWC 1739

[2023] FWC 1739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sylvia Wallam
v

Catholic Health Care Limited

(C2023/1799)

COMMISSIONER HUNT BRISBANE, 20 JULY 2023

Application to deal with contraventions involving dismissal - applicant shown no willingness to prosecute case – non-compliance with Commission directions – application dismissed.

1. On 29 March 2023, Ms Sylvia Wallam made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Catholic Health Care Limited (the Respondent) in contravention of the general protection provisions of the Act.

1. Ms Wallam nominated 19 December 2022 as the date of her dismissal, a fact not contested by the Respondent.  Accordingly, the application has been made 79 days outside of the 21-day time limit prescribed by the Act.

1. The application was allocated to me to determine whether to grant to Ms Wallam an extension of time to bring her application. 

1. On 13 June 2023, I issued directions requiring Ms Wallam to provide witness statements and submissions by no later than 27 June 2023 in support of her application.  On 29 June 2023, my Associate wrote to the parties, requesting Ms Wallam communicate as to why she had not complied with the directions.

1. Having received no response from Ms Wallam, on 13 July 2023, my Associate wrote to the parties and informed them that the matter would be listed for a non-compliance telephone hearing at 10:00am (AEST) on Tuesday, 18 July 2023. The communication informed Ms Wallam that she would be required to give evidence as to why she has not complied with the Commission’s directions to file material in her application.  She was informed that if she failed to attend, or her explanation was not satisfactory, I may dismiss the application pursuant to s.587 of the Act for want of prosecution. 

1. A notice of listing was issued.

1. At 10:00am on Tuesday, 18 July 2023, my Associate contacted Ms Wallam by telephone.  She informed my Associate that she had learned of the non-compliance hearing the day before.  She stated that she was attending a school event involving one of her children. She could not state at what time the event would be completed.

1. I decided to then list the non-compliance hearing for 1:00pm (AEST) on the same date.  My Associate sent to the parties an amended notice of listing by email, together with a text message to Ms Wallam.  Several attempts were made to telephone Ms Wallam with the updated time for the non-compliance hearing.

1. At 1:00pm (AEST) on Tuesday, 18 July 2023, my Associate attempted to call Ms Wallam on five occasions, however the call went straight to voicemail. 

1. Later that day the parties were informed that I had decided to vacate the non-compliance hearing, and my decision in this matter was now reserved.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.” 

Consideration

1. The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. I have satisfied myself that it is not possible to determine Ms Wallam’s application in the absence of sworn evidence from her, nor is it fair to deny the Respondent the opportunity to cross-examine her. 

1. Mr Wallam has showed no willingness to progress her application in accordance with the Commission’s directions or otherwise. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.    

COMMISSIONER

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