Taylor Bastow v Victorian Aboriginal Legal Service

[2020] FWC 4184

[2020] FWC 4184

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Bastow
v
Victorian Aboriginal Legal Service
(U2020/8909)

DEPUTY PRESIDENT YOUNG MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy– application dismissed for want of prosecution.

[1] On 29 June 2020, Ms Taylor Bastow filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Act) (Application).

[2] On 1 July 2020 a notice of listing was issued to the parties listing the matter for conciliation on 23 July 2020. On 20 July 2020 Ms Bastow emailed the Commission confirming her contact number for the conciliation. On 22 July 2020 the Commission sent a text message to the parties reminding them of the conciliation.

[3] Ms Bastow failed to attend the conciliation on 23 July 2020 and accordingly, it could not proceed. Correspondence was sent to the parties on 24 July 2020 advising that the matter would proceed to arbitration if the parties did not request a further conciliation within two working days.

[4] On 27 July 2020, Ms Bastow telephoned the Commission and advised that she did not attend the conciliation as she had a job interview. Subsequently, on 28 July 2020, the Commission attempted to contact Ms Bastow via both telephone and email to seek her advice as to whether she wished to participate in a further conciliation. No response was received from Ms Bastow and accordingly the matter was referred to me for further programming.

[5] On 30 July 2020 my associate wrote to the parties advising that the matter would be listed for a telephone mention in the first instance (Mention). This email advised of the date and time of the Mention and requested the parties provide names of attendees and contact numbers by 5pm 31 July 2020. A notice of listing confirming the Mention was also emailed to the parties on the same day.

[6] Ms Bastow failed to confirm her attendance and contact number for the Mention by 5pm 31 July 2020. Accordingly, my associate telephoned Ms Bastow on 3 August 2020 and left a voicemail requesting that she confirm her attendance and contact number for the Mention. Following this, my associate sent an email to Ms Bastow requesting that she reply confirming her best contact number for the Mention as a matter of urgency.

[7] On 4 August 2020 my associate attempted to telephone Ms Bastow for the Mention on three occasions and left three voicemails requesting an urgent return call. Ms Bastow did not return my associate’s calls. Following Ms Bastow’s non-attendance at the Mention, on 4 August 2020 my wrote to Ms Bastow by email advising that I intended to dismiss her Application for want of prosecution pursuant to section 587 of the Act, unless submissions were provided by her as to why the application should proceed, by no later than 5pm Thursday 6 August 2020. No submissions were received from Ms Bastow by this time. My associate telephoned Ms Bastow at 5:03pm 6 August 2020. Ms Bastow did not answer nor has she returned the call.

Consideration

[8] Section 587 of the Act sets out when the Commission may dismiss an application. It 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 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.”

[9] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion. 1

[10] Ms Bastow did not attend the conciliation conference. She did not attend the Mention. She has not responded to any communication from the Commission since 27 July 2020. She did not provide any submissions as to why the Application should proceed, in circumstances where she was on notice that in the absence of any such submissions I intended to dismiss the Application.

[11] I consider Ms Bastow has failed to prosecute the Application. Accordingly, I have determined to dismiss the Application for want of prosecution, pursuant to section 587 of the Act.

[12] The Application is dismissed.

DEPUTY PRESIDENT

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 1   See also Kennedy v Complete Belting Solutions Pty Ltd[2013] FWC 2777 at [7].