Zara Wilson v Tulla Pty Ltd T/A Subway Busselton

[2020] FWC 4071

[2020] FWC 4071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zara Wilson
v
Tulla Pty Ltd T/A Subway Busselton
(U2020/5948)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 AUGUST 2020

Application for an unfair dismissal remedy – dismissal under s 587 at the Commission’s initiative.

[1] On 30 April 2020, Ms Zara Wilson (the Applicant) filed an application for unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). Subsequent to her application, the Applicant repeatedly failed to comply with the directions issued, and it now appears the Applicant is unavailable for an extended period, therefore, precluding all attempts to programme the matter for hearing.

[2] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 1 As such, consideration turns to whether the application should be dismissed on the basis of there being no reasonable prospects of success.

[3] Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal. 2 That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.3

[4] However, for the reasons that follow, I have decided to dismiss this application on the basis it has no reasonable prospects for success.

Background

[5] Following the lodgement of the application, the matter was listed for conciliation on 5 June 2020. The parties were unable to reach a settlement and the matter was allocated to my Chambers.

[6] On 15 June 2020, Chambers sent directions to the parties with a view to programming the matter. Responses were sought to preliminary questions. The email informed the parties of both ss 399A and 587 of the Act, noting the sections pertained to the dismissal of applications. The Applicant did not respond within the required period and such non-compliance was raised by way of email on 19 June 2020. The parties were again directed to respond in full to the questions, this time by 22 June 2020, and were in addition alerted to ss 399A and 587 of the Act.

[7] By 23 June 2020, no response had been received from the Applicant. A further non-compliance email was sent on that same date. It read:

The Applicant should inform Chambers if they wish to continue with their Application. If the Applicant wishes to withdraw their Application, they should notify Chambers and provide a Form F50 notice of discontinuance (blank form attached).

If the Applicant wishes to continue with their Application, they should write to Chambers seeking an extension to provide their responses and tell Chambers why they were unable to comply with the directions below. Notification should be provided to Chambers by 10:00am AWST, tomorrow, 24 June 2020.

I again remind the Parties that the Commission has the ability to dismiss an application if an applicant fails to comply with the directions of the Commission, or to appear at listed conferences and hearings. I again remind the Parties of s 399A and s 587 of the Fair Work Act 2009 which relate to the dismissal of applications.

[8] My Associate called the Applicant on 24 June 2020 to confirm, first, that the Applicant had received correspondence from the Commission. The Applicant informed my Associate that she was currently moving to a new home and did not have internet access. The Applicant also raised that she was expecting to move again shortly to join the armed forces, pending the easing of COVID-19 restrictions. My Associate raised that the Applicant must respond to correspondence and that if a response was not received, then the application could be negatively impacted.

[9] An email was sent by way of follow up that informed both parties that the Commission had established contact with the Applicant, the Applicant was to respond to the Commission’s email by 26 June 2020, and if no response was received then the matter would be listed for mention. This email stated:

Both parties are reminded that failure to comply with the directions of the Commission may lead to adverse outcomes. Similarly, failure to attend a listed hearing may also adversely impact an application. Chambers draws to your attention s 400A and s 611 of the Fair Work Act 2009 (Cth) which both pertain to costs, and s 399A and s 587 which pertain to the dismissal of an application.

[10] The Applicant provided a response on 25 June 2020. Further correspondence was sent on 1 July 2020, raising that the matter would be listed for mention so that I could explain the actions required by the parties between that time and the hearing of the application. The mention was listed for 14 July 2020.

[11] The Applicant wrote to Chambers on 5 July 2020 stating, ‘I will be unavailable at that time’. Chambers responded on 6 July 2020, noting the mention would last, at most, 30 minutes. The email sought reasons to substantiate the adjournment request, as none had been provided by the Applicant.

[12] The Applicant responded on 7 July 2020: ‘I wish for the matter to be adjourned as I am currently unable to access my phone regularly.’ On that same day, Chambers responded via email. The email stated:

Your reason for seeking an adjournment is insufficient.

Seeking an adjournment of a listing is a serious matter. Details must be provided about the circumstances of the request, including why you are unable to access your phone and at what times you are able to access your phone. It is not simply the case that the programming of a matter will be changed in circumstances where there is a lack of cogent rationale for the request.

Please also provide your earliest available date so that, subject to approval by the Deputy President, the matter may be relisted for that date.

Please remember to include the Respondent in any communication with the Commission.

[13] The Applicant was required to respond to the email from Chambers later in the day on 7 July 2020, but never did. The Applicant did not provide a response until 12 July 2020, two days before the listed mention. The Applicant stated that:

I am currently unavailable for this matter due to being at Military Training and I will be here till the 19th of October. I do not know when I can access my phone until I am given my phone so I cannot provide details of when I will have my phone.

[14] My Chambers responded on 13 July 2020:

Thank you for your correspondence of 12 July 2020, which has been brought to the attention of the Deputy President.

Under the Fair Work Act 2009 (Cth) (Act) the Commission must perform its functions and exercise its powers in a manner that includes being: (a) fair and just; and (b) quick, informal and avoids unnecessary technicalities (s 577 of the Act).

Further, the Commission may dismiss an application if the application has no reasonable prospects of success (s 587(1) of the Act) and in circumstances where there has been non-compliance with directions or a failure to attend a conference (s 399A of the Act).

Your application was allocated to Chambers on 5 June 2020. On 15 June 2020, directions were sent to you and you did not comply with those directions. A non-compliance email was sent to you on 19 and again on 23 June 2020. On 24 June 2020, Chambers called you regarding your non-compliance with the directions and you explained you were moving house and had limited internet accessibility.

On 1 July 2020, you were directed that the matter would be listed for a mention on 14 July 2020. You responded on 5 July 2020 that you would be unavailable, and yet again Chambers had to follow up with you regarding the provision of cogent reasons for your lack of availability.

On 12 July 2020, you subsequently informed Chambers that you were unavailable to proceed with this matter due to being at military training which you would be in attendance at until 19 October 2020. No evidence was provided to substantiate your assertion. Further, you have provided no set time regarding your availability to attend a conference (mention) or hearing.

Ms Wilson, Chambers has had to repeatedly follow up with you to attempt to progress this matter – that was initiated by your own application. Notwithstanding having filed the application, you have not made yourself available for programming to occur and for the matter to proceed.

The Deputy President now questions whether you are positioned to press forward with your application in accordance with the Act. Your continued lack of availability may be at odds with prosecuting your case and it follows that the issue which arises is whether your application has no reasonable prospect of success.

As such, the Commission will now consider whether your application should be dismissed.

The parties are directed:

•  The Applicant is required to file with Chambers and serve on the other party:

◦  written submissions, witness statements, a document list, and any material upon which it wishes to rely by no later than 16:00 AWST on Tuesday, 28 July 2020.

•  The Respondent is required to file with Chambers and serve on the other Party:

◦  written submissions, witness statements, a document list, and any material upon which it wishes to rely in reply to the Applicant’s materials by no later than 16:00 AWST on Tuesday, 4 August 2020.

•  The Parties are to inform Chambers by 16:00 AWST on Wednesday, 5 August 2020 if they seek to be heard in regard to the application to dismiss, or if the application may be dealt with on the papers. [emphasis removed]

[15] The 14 July 2020 mention was then vacated.

[16] No response was received from the Applicant. At 17:43 AWST, 28 July 2020, my Chambers wrote to both Parties stating:

Chambers refers to the Deputy President’s directions of 13 July 2020, included below.

The Applicant was directed to file and serve submissions, witness statements, a document list, and any material upon which they wished to rely by 16:00 AWST, 28 July 2020.

As at 17:30 AWST, 28 July 2020, no submissions have been received.

The Applicant should make any submissions as a matter of urgency, and seek an extension in which to file their submissions, also providing reasons why the Applicant’s submissions were not filed at 16:00 AWST, today.

If a response is not received from the Applicant by 10:00 AWST, tomorrow, 29 July 2020, the Deputy President will consider whether to exercise the powers granted by ss 587 and 399A of the Fair Work Act 2009 (Cth).

Alternatively, if the Applicant does not wish to continue with the application, they should lodge a Form F50 notice of discontinuance, or write to Chambers informing the Commission that they no longer wish to proceed with the application.

[17] At the time of publishing this decision, no further contact has been received from the Applicant concerning her application.

Legislative framework

[18] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. Those sections state:

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.

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[19] Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides:

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Consideration

[20] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. While the application was made in the latter part of April 2020, the Applicant has done little to prosecute her case. Her non-compliance with directions and absence of cogent reasons for the same, failure to attend the scheduled mention, seeking adjournments premised on inadequate reasons, and prolonged unavailability based on an assertion, have led me to this conclusion. I appreciate in part the Applicant’s position. However, there was a period of a month where the Applicant could have complied directions and made herself available for a mention. Thereafter, she has ceased all contact with this Commission stating she is in military training. No evidence has been provided to show that this is the case, notwithstanding a direction to do so.

[21] There is a reluctance that arises when it comes to extinguishing an applicant’s right to have their matter heard. It is not the case that I lack sympathy for those who find that the circumstances of life can sometimes get in the way. But the context is such, that the Applicant has had ample opportunity to present herself (by telephone or ‘virtually’) to this Commission so that the matter might be programmed. She has not done so.

[22] While the Applicant appeared at the first conciliation conference and responded to some emails sporadically thereafter, she has demonstrated an unwillingness to pursue her application further. Notwithstanding having been placed on notice of those sections of the Act pertaining to dismissal of an application, and in addition, to the consequences of non-compliance with directions and non-appearance. At best, indifference has been demonstrated.

[23] It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, dismiss her application pursuant to s 587(1)(c).

[24] An Order 4 to this effect is issued concurrently.

DEPUTY PRESIDENT

On the papers.

Printed by authority of the Commonwealth Government Printer

<PR721519>

 1   Peter Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 3   Ibid,[31].

 4   PR722037.