Vanessa Cresia v Marcevski Lawyers T/A Marcevski Lawyers

[2020] FWC 1961

[2020] FWC 1961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Cresia
v
Marcevski Lawyers T/A Marcevski Lawyers
(U2018/6391)

COMMISSIONER BISSETT MELBOURNE, 28 APRIL 2020

Application for an unfair dismissal remedy – failure to prosecute application – no reasonable prospects of success – application dismissed pursuant to s.587(1)(c).

[1] On 20 June 2018 Ms Venessa Cresia (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised she was employed by Marcevski Lawyers T/A Marcevski Lawyers (Respondent).

[2] On her Form F2 Unfair dismissal application the Applicant advised that there was an interim intervention order granted on 13 June 2018 in relation to the Respondent contact person.

[3] On 2 July 2018 the matter was listed for a conciliation conference.

[4] On 4 July 2018 the Applicant emailed correspondence to the Commission attaching the interim Family Violence Restraining Order (FVRO) that prohibited the Respondent contact person from contacting or communicating with the protected person (the Applicant) by any means.

[5] On 20 July 2018 the conciliation conference proceeded by way of the conciliator speaking to both parties in separate telephone calls. The matter did not settle at the conciliation conference.

[6] On 31 July 2018 the Commission telephoned the Applicant. The Applicant advised that a final intervention order had not yet been made and that a directions hearing had not yet been set. The Applicant advised that she did not have a problem being in the same court room as the Respondent contact person as she had done so in other court proceedings. The Commission advised that a Member of the Commission would review the matter and advise the parties regarding the further management of the matter.

[7] On 2 August 2018 the Commission emailed correspondence to the parties advising that:

•  if neither party wishes to, or is able to, seek legal representation, the hearing would need to be able to proceed with the Respondent contact person having the capacity to cross-examine the Applicant;

•  the Applicant would need to seek an amendment to the FVRO from the Court so the Commission could conduct proceedings without the risk of a breach of the FVRO; and

•  the unfair dismissal matter would be adjourned until an amended FVRO that enables the matter to proceed is obtained for the Court and provided to the Commission.

[8] On 2 October 2018 the Commission telephoned the Applicant to seek an update on the status of the FVRO. The Applicant advised that the application for the FVRO was made by the police and, as there was a criminal investigation underway, the police had advised they would not be varying the order at this stage. The Applicant advised there was a Federal Circuit Court hearing on 3 October 2018 and that she would notify the Commission if there were further developments. The Commission requested that the Applicant keep in communication.

[9] On 7 January 2019 the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left that was converted to a text message advising the Commission required an update on the criminal investigation and requested a return call. Also on that day the Commission also emailed correspondence to the Applicant requesting an update on the criminal investigation and requesting a return call.

[10] On 1 February 2019 the Applicant emailed correspondence to the Commission advising that she had not received a voicemail and that the FVRO was listed for a 2 day contested hearing at the Sunshine Magistrates’ Court on “29 and 30 July 2018” [sic]. The Applicant advised that she would speak to the prosecution to confirm their stance.

[11] On 8 February 2019 the Applicant emailed correspondence to the Commission confirming her nominated mobile telephone number. It was the same mobile telephone number that the Commission had on file.

[12] On 5 July 2019 the Commission emailed correspondence to the Applicant querying whether her email advising the 2 day contested hearing at the Sunshine Magistrates’ Court “on 29 and 30 July 2018” was meant to advise ‘29 and 30 July 2019’. No response to this email was received.

[13] At 4:47pm on 7 February 2020 the Commission telephoned the Applicant to request an update in relation to the FVRO. The Applicant requested to return the Commission’s call later that day. The Commission advised that the office would be closing at 5:00pm and that she would receive email correspondence requesting an update. The Commission requested the Applicant respond to that email with an update. The Applicant advised she would do this.

[14] Later that day the Commission emailed correspondence to the Applicant requesting she confirm if she wished to continue with her unfair dismissal application and, if so, to provide an update on the status of the intervention order and the outcome of the hearing on 29 and 30 July 2019. The Commission requested a response as soon as possible. No response from the Applicant has been received.

[15] On 17 February 2020 the Commission again emailed correspondence to the Applicant requesting confirmation that the Applicant wished to pursue the unfair dismissal application and an update on the status of the intervention order by 2 March 2020. The Commission advised that if the Applicant did not wish to continue her unfair dismissal case, she should provide a notice of discontinuance. No response from the Applicant was received.

[16] On 20 March 2020 the Commission emailed correspondence to the parties advising that as no response had been received from the Applicant, Commissioner Bissett, Practice Leader for Termination of Employment, was considering whether the application should be dismissed under s.587 of the FW Act as the application has no reasonable prospects of success given the Applicant’s failure to prosecute her case. That correspondence directed the Applicant to file with the Commission and serve on the Respondent any submissions and evidence as to why the Commissioner should not dismiss the application on the grounds that it has no reasonable prospect of success because of the Applicant’s failure to prosecute the case by 27 March 2020.

[17] On 30 March 2020, as no response had been received from the Applicant, the Commission emailed correspondence to the Respondent advising that they were not required to file any material in reply. The correspondence advised the matter would be referred to Commissioner Bissett, Practice Leader for Termination of Employment, for determination on the available material. The Applicant was copied into this email correspondence.

[18] To date, the Applicant has not filed any material with the Commission and has not responded to the Commission’s correspondence to confirm that she wishes to prosecute her unfair dismissal application. The Applicant has failed to comply with the directions to file material by 27 March 2020.

[19] Section 587 of the FW Act states:

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[20] The Applicant has not demonstrated that she has taken any steps to prosecute her unfair dismissal application despite repeated attempts by the Commission to ascertain her intentions regarding the matter.

[21] As the Applicant has failed to prosecute her application, I find that the application has no reasonable prospects of success. Accordingly, I have decided to dismiss the Applicant’s unfair dismissal application pursuant to s.587(1)(c) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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