Tofe Talaumi v Ozstaff Holdings Pty Ltd
[2023] FWC 783
•3 APRIL 2023
| [2023] FWC 783 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tofe Talaumi
v
Ozstaff Holdings Pty Ltd
(C2023/783)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 3 APRIL 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
Ms Tofe Talaumi (Applicant) lodged an application (the Application) with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) on 14 February 2023 alleging that she was dismissed from her employment with Ozstaff Holdings Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
The Respondent raised a jurisdictional objection to the Application, being that the Applicant was not dismissed.
On 17 February 2023, the parties were advised that the matter would be listed on 15 March 2023 for conciliation by a staff member of the Commission.
On 8 March 2023, the Applicant sent an email to the Commission advising that she would be attending the conciliation by herself.
On 9 March 2023, the Commission attempted to contact the Applicant via telephone, however the phone number provided by the Applicant appeared to be disconnected. The Commission sent an email to the Applicant seeking confirmation as to whether the representative listed on her Application would also attend the conciliation. The Applicant did not respond.
At the commencement of the conciliation on 15 March 2023, the Conciliator made two attempts to contact the Applicant via telephone and sent an email to the Applicant advising that he was attempting to contact the Applicant for the purposes of the conciliation. The Conciliator was advised by the Applicant’s representative that they had also been unable to contact the Applicant on that day. Accordingly, the conciliation did not proceed and an email was sent to the parties noting the Applicant’s failure to attend.
On 17 March 2023, an email was sent to the Applicant requesting that she confirm her intention to proceed with the Application and provide reasons for her non-attendance at the conciliation by 20 March 2023. The Commission did not receive a response.
On 24 March 2023, the Application was allocated to my Chambers. On the same day, my Chambers made two attempts to contact the Applicant via telephone however the phone number appeared to be disconnected.
On 27 March 2023, the parties were advised that the matter would be listed for a Mention and Directions Hearing before myself on 30 March 2023. The parties were requested to confirm their attendance by 28 March 2023.
On 28 March 2023, correspondence was sent to the parties seeking confirmation of their attendance at the Mention and Directions Hearing, to which the Respondent replied later that day.
On 29 March 2023, my Chambers made two telephone calls to the Applicant, however the phone number remained disconnected. My Chambers also attempted to contact the Applicant’s representative, and being unable to speak with her representative, left a voicemail message requesting that they contact Chambers. A further request was sent by email to the Applicant seeking confirmation of her attendance at the Mention and Directions Hearing and providing the details required to join the Mention and Directions Hearing via Microsoft Teams.
Later on 29 March 2023, the Applicant’s representative filed a Form F54 Notice that they were ceasing to act for the Applicant.
On 30 March 2023, the Applicant failed to join the Mention and Directions Hearing. My Chambers made two attempts to contact the Applicant via telephone. My Chambers then sent two emails to the Applicant, each requesting that she join the Mention and Directions Hearing or contact chambers immediately, and in the second instance advising that should she fail to attend the Mention and Directions Hearing, I may consider dismissing her Application for want of prosecution.
In the absence of any communication from the Applicant, the Mention and Directions Hearing proceeded without the Applicant. During the Mention and Directions Hearing, I informed the Respondent that the Applicant would be provided a final opportunity to contact the Commission, and that, if the Applicant did not do so, I would dismiss the Application for want of prosecution.
Following the conclusion of the Mention and Directions Hearing, correspondence was sent to the Applicant stating that if she did not contact the Commission by 11:00am on 31 March 2023 her matter may be dismissed for want of prosecution without further notice, and requesting that she provide reasons for her non-attendance at the Mention and Directions Hearing.
Consideration
The Commission’s powers in relation to dismissing applications made under s.365 of the Act are set out in s.587. That section 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(1) of the Act makes clear that the circumstances in which the Commission may dismiss an application are not limited to those addressed in s.587. While an application made under s.365 of the Act cannot be dismissed on the grounds identified in s.587(2) of the Act, it is open to the Commission to dismiss such an application for want of prosecution by an applicant.
The Commission has made numerous unsuccessful attempts to contact the Applicant since she last contacted the Commission on 8 March 2023. Having failed to attend the Mention and Directions Hearing, the Applicant was provided with a final opportunity to contact the Commission and was advised that the likely outcome of her failure to make contact with the Commission would be the dismissal of the Application for want of prosecution. The Applicant has not contacted the Commission as requested.
The Commission has not received any further contact from the Applicant since 8 March 2023. I am satisfied in all the circumstances that the Applicant does not intend to prosecute the Application and have determined to exercise my powers under s.587(3)(a) of the Act to dismiss the Application on my own initiative on that basis.
The Application is dismissed. An Order[1] giving effect to this will be issued concurrently with this Decision.
COMMISSIONER
[1] PR760776.
Printed by authority of the Commonwealth Government Printer
<PR760775>
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