Tanya O'Rourke v Jose Alonso
[2022] FWC 2568
•26 SEPTEMBER 2022
| [2022] FWC 2568 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tanya O’Rourke
v
Jose Alonso
(C2022/5322)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 26 SEPTEMBER 2022 |
Application to deal with a general protections dispute involving dismissal – extension of time – no dismissal – application dismissed pursuant to s.587.
On 27 July 2022, Ms Tanya O’Rourke lodged an application (GP Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act), for the Commission to deal with a general protections dispute involving dismissal from her employment with Jose Alonso (Respondent).
I have determined to dismiss the GP Application pursuant to s.587 of the Act. The reasons for this decision follow.
History of the claim
A general protections application involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.366 of the Act. It is not contentious that the Applicant’s dismissal took effect on 27 June 2022. The Applicant did not lodge her application until 27 July 2022. Accordingly, the period of 21 days ended at midnight on 18 July 2022 and the application was lodged 9 days out of time.
Ms O’Rourke acknowledged the late lodgement of the GP Application in her Form F8 and stated that the reason for the delay was because she had previously and erroneously lodged a Form F2 unfair dismissal application (U2022/7194) before realising she did not meet the minimum employment period for an unfair dismissal remedy. Ms O’Rourke requested that the Commission allow a further period for the GP Application to be made pursuant to s.366(2) of the Act (Extension of Time Application). The Respondent opposed the Extension of Time Application. Additionally, the Respondent raised further jurisdictional objections, being that Ms O’Rourke was not an employee and that she had not been dismissed as that term is defined in s.386 of the Act (Not an Employee and No Dismissal Objections). Conciliation was opposed by the Respondent pending a determination of the jurisdictional objections.
A mention/directions hearing was listed for 31 August 2022 (First Mention). Ms Delia Alonso appeared on behalf of the Respondent. Ms Alonso submitted that Ms O’Rourke had not identified the correct Respondent in the Form F8. Ms Alonso submitted that the correct Respondent was Ourense Pty Ltd and that Mr Jose Alonso was a director of that entity. Ms O’Rourke considered that she had been employed by Mr Alonso and did not consent to the name of the Respondent to the Application being amended to Ourense Pty Ltd. Accordingly, the Respondent was directed to file with chambers evidence to support the assertion that the correct Respondent to the Application was Ourense Pty Ltd by Monday, 5 September 2022. Ms O’Rourke was directed to advise chambers by 5pm Tuesday, 6 September 2022 as to whether, in light of the evidence filed, she agreed that the correct Respondent was Ourense Pty Ltd. This was confirmed in email correspondence from chambers sent at 11.57am on 31 August 2022.
Ms Alonso filed evidence as directed on Monday, 5 September 2022.
No correspondence was received from Ms O’Rourke by 5 pm, 6 September 2022, or at any other time, as to the correct Respondent.
At 10.34am on 7 September 2022 email correspondence was sent from my chambers to the parties attaching directions for materials to be filed in the Extension of Time Application and the No Dismissal Objection (Directions). This email also stated:
“…
On Wednesday, 31 August 2022 Deputy President Young directed the Applicant to provide confirmation as to whether or not the change to the Respondent’s name was accepted by 5pm yesterday, 6 September 2022. Chambers has received no further correspondence from the Applicant and seeks confirmation that the name of the Respondent above is agreed by close of business tomorrow, 8 September 2022.
…”
Ms O’Rourke again failed to respond to the Commission as directed by close of business, 8 September 2022.
At 9.55am on 12 September 2022 further email correspondence was sent from my chambers to the parties stating:
“…
On Wednesday, 31 August 2022 and 7 September 2022 Deputy President Young directed the Applicant to provide confirmation as to whether or not the change to the Respondent’s name is accepted. Chambers has still received no further correspondence from the Applicant and seeks confirmation that the name of the Respondent above is agreed by close of business tomorrow, 13 September 2022.
In absence of a response from the Applicant the Deputy President may call a further mention/directions hearing.
…”
Ms O’Rourke again failed to respond to the Commission as directed by close of business, 13 September 2022.
In light of the repeated failure of Ms O’Rourke to respond to the Commission, on 15 September 2022 the matter was listed for a mention/directions hearing at 2.30pm on Monday, 19 September 2022 (Second Mention).
At the commencement of the Second Mention my Associate telephoned Ms O’Rourke twice on the mobile telephone number previously provided by her and used to contact her for the First Mention. Ms O’Rourke was unable to be contacted. A voicemail was left advising Ms O’Rourke of the Second Mention and requesting that she telephone or email chambers. My Associate again tried to telephone Ms O’Rourke at 2.40pm and on two further occasions at 2.45pm, when a further voicemail was left for her. Ms O’Rourke was unable to be contacted and did not respond to either of the voicemail messages left for her.
Following the Mention, at 4.30pm on Monday, 19 September 2022 correspondence was sent from my chambers to the parties which set out the above history and stated the following:
“The Deputy President requires that Ms O’Rourke provide a written explanation as to her failure to attend the Mention by 5pm tomorrow, 20 September 2022.
Should Ms O’Rourke fail to provide an explanation as to why she did not attend that Mention in accordance with the timeframe set out above, the Deputy President may dismiss Ms O’Rourke’s application pursuant to section 587 of the Fair Work Act 2009.”
Ms O’Rourke did not provide an explanation for her failure to attend the Mention by 5pm, 20 September 2022 or at any other time, nor did she otherwise communicated with the Commission.
In accordance with the Directions issued on 7 September 2022 Ms O’Rourke was directed to file her materials as to the Extension of Time Application by 5pm, 21 September 2022. Ms O’Rourke failed to file any material in compliance with the Directions and as at the date of this decision has still not filed any material, nor made any contact with the Commission.
Legislative power to dismiss
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.”
Section 587 of the Act sets out matters that the Commission must take into account when performing functions or exercising powers, including those under s.587. S.578 provides as follows:
“578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
a) the objects of this Act, and any objects of the part of this Act; and
b) equity, good conscience and the merits of the matter; and
c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
Consideration
Section 587 confers a sufficiently broad discretion to allow an application under s.365 to be dismissed for want of prosecution by an applicant, in an appropriate case. I consider so much is clear from the inclusion of the words “Without limiting when the FWC may dismiss an application” at the commencement of section 587. However, I consider that such discretion ought be exercised with caution and having regard to the matters the Commission is required to take into account in the performance of its functions.
The objects of the general protections provisions at Part 3-1 of the Act include to protect workplace rights and provide protection from workplace discrimination. The Commission’s role in a general protections claim involving dismissal is to assist in dispute resolution, provided application was made within the statutory timeframe or such further time as the Commission allows.
Ms O’Rourke has failed to respond to communications from the Commission to allow the GP Application to be properly progressed on 6 September 2022, 8 September 2022, and 13 September 2022. She failed to attend the Second Mention on 19 September 2022 and did not return the telephone calls left for her by my chambers. She did not provide any explanation for her failure to attend the Second Mention, despite being put on notice that a failure to do so may lead to the GP Application being dismissed. Finally, she has failed to file any material in support of her application for an extension of time to lodge the GP Application as directed. I infer from Ms O’Rourke’s repeated failure to respond to the Commission and comply with its directions, including its directions to file materials in support of the Extension of Time Application, that she does not intend to prosecute her application.
With regard to the objects of Part 3-1 and taking into account fairness, justice, equity and good conscience for both employers and employees, I consider that the Commission has afforded ample opportunity to Ms O’Rourke to communicate with the Commission and ultimately prosecute her general protections claim. Ms O’Rourke was placed on notice of the consequences of her non-compliance and still failed to respond. The Applicant’s non-participation in the Commission’s processes has required the Respondent to expend resources in continuing to respond to a claim that the Applicant no longer seems to have any intention of prosecuting.
For the above reasons, I have determined that the application should be dismissed. I order accordingly.
DEPUTY PRESIDENT
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