Tiarma Johnstone v Ming Enterprises Pty Ltd

[2024] FWC 693

[2024] FWC 693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tiarma Johnstone
v

Ming Enterprises Pty Ltd

(U2023/12479)

DEPUTY PRESIDENT LAKE BRISBANE, 19 MARCH 2024

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

1. Ms Tiarma Johnstone (the Applicant) was employed by Ming Enterprises Pty Ltd (the Respondent). The Applicant commenced employment in October 2022 and was dismissed on 24 November 2023. On 14 December 2023, the Applicant made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Applicant had incorrectly entered her commencement date on her Form F2 application, and it was reflected in her employment contract that the Applicant was employed from 24 October 2023.

1. A conciliation was held on 25 January 2024 which was unsuccessful. The Applicant was given additional information and notice regarding the minimum employment period threshold on 25 January 2024 and 6 February 2024. The matter was then allocated to my Chambers for determination on 13 February 2024.

1. The matter was listed for hearing on 5 March 2024 and Directions were issued for the filing of material. The Applicant was required to file material in support of the application by no later than 23 February 2024.

1. On 23 February 2024, my Chambers called the Applicant regarding her non-compliance with the Directions. A further call was made on 26 February 2024 and the Applicant was given until 28 February 2024 to comply with the Directions. Email correspondence was sent by my Chambers confirming this amended deadline later that same day. No response was received at this time.

1. On 5 March 2024, email correspondence was sent to the parties reminding them of the Mention/Directions listed for that day where the Applicant’s non-compliance would be discussed, and the Applicant was given a final opportunity to provide materials regarding the matter by 12:00pm on 12 March 2024. The Applicant did not attend the Mention listing and did not file any material by the amended date. In later correspondence on 5 March 2024, the parties were also notified that the hearing had been relisted for 14 March 2024. The Respondent filed their submissions on 8 March 2024 as directed. The Applicant has not filed any material with the Commission to date.

1. Section 587 of the Act 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.”

1. The words, “Without limiting when FWC may dismiss an application” at the beginning 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).

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

DEPUTY PRESIDENT

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