Tanika James v The Trustee for Robinson Family Trust
[2023] FWC 1687
•12 JULY 2023
| [2023] FWC 1687 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tanika James
v
The Trustee For Robinson Family Trust
(C2023/2742)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 12 JULY 2023 |
Application to deal with contraventions involving dismissal
Background
On 13 May 2023, Ms Tanika James (Applicant) filed an Application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Ms James commenced employment with the Trustee For Robinson Family Trust (Respondent) in July or October 2022 and claims to have been dismissed on 20 April 2023.
The Respondent raised an objection that the Application had been filed out of time.
The matter was allocated to my Chambers on 20 June 2023. A notice of listing and directions were issued to the parties on 21 June 2023, with the matter listed for hearing to resolve the out of time jurisdictional objection on 12 July 2023 at 10:30am AEST.
At the Hearing on 12 July 2023, the Respondent was represented by Ms Amanda Both, DJMIR Advisory Services Pty Ltd. The Applicant was not in attendance despite multiple attempts to contact her being made by my Associate. Accordingly, the Hearing was not able to proceed.
Following the Hearing, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to attend, which read as follows:
“Dear Ms James
C2023/2742 - Tanika James v The Trustee For Robinson Family Trust
I refer to the matter above.
Background
On 21 June 2023, the Fair Work Commission issued Directions and a Notice of Listing in this matter listing it for Hearing at 10:30am Today, 12 July 2023.
You did not attend the Hearing.
You were called three times this morning in relation to your non-attendance and a voicemail was left.
To date, Chambers has not received any explanation or correspondence in respect of your non-attendance.
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-attendance. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 12 July 2023.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.
Yours faithfully
[Associate]”
Chambers received no response in respect of the Show Cause Email.
Legislative Provisions
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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”i
Consideration
As the Applicant has made no attempt to comply with the Show Cause Email, and has failed to explain her non-attendance, I have decided to dismiss her Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-attendance at the Hearing is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or prosecute her case, and/or contact the Commission to explain her non-attendance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of her own case.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR764166>
0