Tara Briggs v The Trustee for Sundose Trust
[2022] FWC 1428
•7 JUNE 2022
| [2022] FWC 1428 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tara Briggs
v
The Trustee For Sundose Trust
(C2022/432)
| DEPUTY PRESIDENT LAKE | BRISBANE, 7 JUNE 2022 |
Application to deal with contravention involving dismissal – dismissed pursuant to s.587 of the Fair Work Act 2009.
Background
On 11 January 2022, Ms Tara Briggs (the Applicant) lodged an application with the Fair Work Commission (the Commission/the FWC) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to her dismissal by The Trustee For Sundose Trust (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry in Melbourne. The Applicant’s employment commenced with the Respondent on or around 1 December 2021 and her employment status was in dispute on 16 December 2021.
On 10 March 2022, the Respondent filed a Form F8A in response, declaring that the Applicant had not been dismissed and was a casual employee.
On 13 May 2022, the parties were sent a Notice of Listing with Directions advising them the matter was listed for a Jurisdictional Hearing by way of telephone on 6 June 2022 at 10.00am (AEST). The Applicant was to file their material on 20 May 2022 by 4.00pm (AEST).
On 25 May 2022, the Respondent contacted the Commission asking if the Applicant had submitted their material.
On 26 May 2022, my associate sent an email to the parties informing the Applicant that they had failed to comply with the Directions. The Applicant was now directed to file and serve on 27 May 2022 by 4.00pm (AEST) reasons and evidence in support of her failure to comply with the Directions. Both parties were put on notice that they were required to attend the Hearing and where material had not been filed, the Jurisdictional Hearing would proceed as a Non-Compliance Hearing.
On 31 May 2022 at 8.01am (AEST), the Respondent contacted the Commission stating that they had not received any material or correspondence from the Applicant. At 12.15pm (AEST), my associate sent an email informing both parties that the Jurisdictional Hearing listed for 6 June 2022 would proceed as a Non-Compliance Hearing. At 5.04pm (AEST), the Applicant responded to the email with only a screenshot of correspondence from Queensland Health confirming that on 31 May 2022 at 4.56pm (AEST), she had successfully registered a positive COVID-19 test result from a Rapid Antigen Test taken on 20 May 2022 (AEST).
On 2 June 2022, the Applicant provided us with her contact details for the Hearing.
On 6 June 2022 at 10.00am (AEST), the day of the Hearing, my associate attempted to connect the Applicant to the Hearing three times using the mobile number provided on 2 June 2022. All three times the call rung out and went to voicemail. My associate then sent an email to the Applicant with the Respondent copied in, informing her that we had attempted to contact her and that the Hearing would proceed at 10.15am (AEST). The Hearing proceeded and the Applicant did not respond nor call in at 10.15am (AEST). The Respondent provided their submissions on the issue of the Applicant’s non-compliance.
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 Symbion Health[2011] FWA 5458, Commissioner Gooley (as she was then) 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 (c) 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.”
This was affirmed by Vice President Catanzariti in McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112 at paragraphs [10]–[11], and later by Commissioner Platt in Derek Hosback v Programmed Skilled Workforce Limited, PPG Industries Australia Pty Ltd [2021] FWC 6117 at paragraph [9] where the Vice President and Commissioner held respectively that s.587 was sufficiently broad enough to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.
Consideration
As the Applicant has not firstly provided submissions for the Jurisdictional Objects, secondly has failed to provide reasons for failing to comply with the Directions dated 13 May 2022, and thirdly failed to attend the Non-Compliance Hearing on 6 June 2022 despite the numerous efforts that were made to connect her to the Hearing, 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-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that the Applicant does not seem to have any intention on following through. Further, in taking into account fairness, justice, equity, and good conscience, I find that the Applicant has been given many opportunities to contact the Commission and prosecute her case, but has failed to do so.
Conclusion
While the Respondent has not made an application seeking that Ms Tara Briggs’ application be dismissed, I have on my own initiative pursuant to s.587(3)(a) of the Act found that the application should be dismissed. I Order accordingly.
The application lodged by Ms Tara Briggs under s.365 of the Fair Work Act 2009 on 11 January 2022 is dismissed pursuant to s.587 of the Fair Work Act 2009.
DEPUTY PRESIDENT
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