Tamara Fuesaina v Southern Cross Community Healthcare Pty Ltd

[2020] FWC 4205

[2020] FWC 4205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tamara Fuesaina
v
Southern Cross Community Healthcare Pty Ltd
(U2020/6195)

DEPUTY PRESIDENT LAKE BRISBANE, 10 AUGUST 2020

Applicant for an unfair dismissal remedy – application dismissed – s 587.

[1] This decision concerns an application by Ms Tamara Fuesaina (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Southern Cross Community Healthcare Pty Ltd (the Respondent) and claimed that she was unfairly dismissed.

[2] The Applicant lodged their Form F2 Unfair Dismissal Application on 5 May 2020. A Form F3 Employer Response was filed by the Respondent on 27 May 2020. The matter was allocated to my Chambers for hearing and determination on 12 June 2020.

[3] The matter was subject to some preliminary settlement discussions between the parties, which were unsuccessful. Directions were sent to the parties on 24 July 2020. The Respondent made a request for disclosure of documentation on 28 July 2020. On 29 July 2020, Chambers directed the Applicant to provide documentation by 4pm AEST, 6 August 2020.

[4] No documentation was received in line with Chambers direction and on 6 August 2020 the following email was sent:

Dear Ms Fuesaina

The Applicant was directed by Chambers to produce documents in line with a Form F52 filed by the Respondent. This was due to be done by 4pm AEST, Thursday 6 August 2020.

Chambers directs that this documentation must be filed by 12pm AEST, Friday 7 August 2020. The Deputy President directs that a failure of the Applicant to comply with a direction of the Commission can result in the claim being dismissed as frivolous or vexatious under s 587(1)(b) or otherwise, under s 399A(1)(b) of the Fair Work Act 2009, on application by the Respondent.

[5] No response was received from the Applicant and a further final opportunity was provided for the Applicant to provide a response:

Dear parties

Ms Fuesaina, Chambers has directed you to provide material, which has not been received. This is sufficient grounds to find that a matter has no reasonable prospect of success: Richard Carter v The Hanna Group Pty Ltd [2011] FWA 31. You must correspond with Chambers by 4pm AEST, 10 August 2020 (today), otherwise your matter is likely to be dismissed for want of prosecution. This correspondence should provide a clear reason for the delay and lack of communication with Chambers. This is not the first correspondence Chambers has sent regarding your failure to pursue your claim and as such, reasonable steps have been taken to give the opportunity to proceed with your matter.

[6] No correspondence or communication has been received explaining the Applicant’s failure to respond. In line with the above authority, the Applicant has been given sufficient time and numerous opportunities to make contact. 1

[7] I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute her claim. I provided numerous opportunities for an explanation, but no correspondence with Chambers was received. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, a failure to provide evidence could render an application with no reasonable prospect of success. However, if such an approach was found not to be sufficient, it is clear that ‘the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.’ 2

[8] I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation. I am also satisfied that sufficient time and warning was given to comply and that the failure to comply is both disrespectful and unconstructive. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s 587.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Richard Carter v The Hanna Group Pty Ltd[2011] FWA 31, [6](DP Sams).

 2   Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, [11] (DP Bartel).