Tamara Hughes v Woodgate Club Inc Summary

[2023] FWC 964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tamara Hughes
v

Woodgate Club Inc

(U2023/1616)

DEPUTY PRESIDENT LAKE

BRISBANE, 8 MAY 2023

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

Tamara Hughes (the Applicant) was employed by Woodgate Club Inc (the Respondent) on 7 October 2020 until she was dismissed on 14 February 2023. On 28 February 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A Conciliation was listed on 28 March 2023 before the matter was allocated to me. The Conciliator attempted to contact the Applicant on 3 occasions at 9.15am, 9.16am and 9.20am, and attempted to contact the Applicant again at 9.44am with no response. The conciliation did not take place. The matter was then allocated to me for determination.

The matter was listed for Directions Conference on 11 April 2023 at 2:00pm. My Associate attempted to contact the Applicant at 2:00pm, 2:02pm and 2:15pm with the number provided in the Form F2 with no response. My Associate sent an email on 12 April 2023 requesting why the Applicant did not appear at this conference by close of business 18 April 2023 or the Application may be dismissed under s.587 of the Fair Work Act 2009 (Cth).

An email was sent from my Chambers on 24 April 2023 providing an additional opportunity for the Applicant to respond as to why they have not responded to any of the Commission’s correspondence. The Applicant was warned again that the matter may be discontinued under s.587 of the Fair Work Act 2009 (Cth) if she did not respond.

The Applicant has not responded to any correspondence to date.

Section 587 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 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 s527F 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.”

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).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

I Order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Tamara Hughes v Woodgate Club Inc, the applicant, Tamara Hughes, lodged an application for unfair dismissal against her former employer, Woodgate Club Inc, under section 394 of the Fair Work Act 2009. The application was made following her dismissal on 14 February 2023. The Conciliation, initially scheduled for 28 March 2023, did not proceed as the applicant failed to respond to multiple contact attempts by the Conciliator. Despite subsequent efforts to contact the applicant, including a Directions Conference on 11 April 2023 and further communications on 12 April 2023 and 24 April 2023, no response was received from the applicant.

The court was required to address whether the application could be dismissed under section 587 of the Fair Work Act 2009 due to the applicant's failure to prosecute the application. The Deputy President considered whether the application was frivolous, vexatious, or had no reasonable prospects of success, as well as whether the court had jurisdiction to dismiss the application under section 587(3)(a). The court noted that the absence of a response from the applicant to multiple attempts to contact her indicated that the application had no reasonable prospects of success and that the jurisdiction to dismiss the application was not limited to the specific circumstances outlined in section 587(1)(a), (b), and (c) of the Act.

The Deputy President determined to dismiss the application for want of prosecution under section 587(3)(a) of the Fair Work Act 2009. The applicant's failure to respond to any correspondence from the court or the Conciliator led to the conclusion that the application had no reasonable prospects of success and should be dismissed. Consequently, the Deputy President ordered the dismissal of the application and noted that no further action would be taken unless the applicant provided a satisfactory response to the court's correspondence.

Tamara Hughes v Woodgate Club Inc

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