s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.587 - failure to prosecute case - failure to file material by due date - application dismissed.

• [1] On 8 January 2025, Ms Allira Gleeson (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Yarra Ranges Kindergarten (Respondent) on 20 December 2024.

• [2] In its Form F3 Employer Response, the Respondent has raised a jurisdictional objection that the Applicant was not dismissed and remains a current employee of the Respondent.

• [3] Upon the matter being allocated to me, I issued directions on 3 March 2025 for the conduct of proceedings. Pursuant to those Directions the matter was listed for a mention hearing on 11 March 2025. The Directions also required Ms Gleeson to file her evidence and supporting material by 25 March 2025. The matter was listed for a hearing on 8 May 2025.

• [4] As to non-compliance, the directions stated:

"Non-compliance: You must provide the material sought by the date specified. An extension of time will not be granted without substantial reason as to why you cannot meet the requirements by the date specified."

"Failure to comply with these Directions or to attend any conference or hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission"

• [5] On 7 March 2025, Chambers received an email from the Respondent advising the parties had reached an agreement to settle and requesting the Commission hold any further proceedings in abeyance pending confirmation of a withdrawal from the Applicant. Chambers responded to the email requesting confirmation from the Applicant that the status of the matter was as set out in the Respondent's email, and that absent a response from the Applicant by midday that day the Mention scheduled for the following Tuesday would be vacated and parties not required to attend (noting the Monday prior to the scheduled Mention was a public holiday in Victoria). The parties were also advised that on the assumption there will be a settlement Agreement, it was the Deputy President's expectation the parties can and should finalise signed Terms within a couple of days. A status update was requested by 12 March 2025. Parties were advised upon confirmation of executed Terms the Deputy President would vacate the remainder of the Directions and the scheduled hearing on 8 May 2025.

• [6] Later that day, Chambers sent a further email to the parties noting no response from the Applicant by the requested time, confirming the Mention was vacated, and that the remainder of the Directions and the Hearing date remained on foot and would only be vacated upon confirmation of executed Terms of Settlement. The requirement to provide a status update by 12 March 2025 was confirmed.

• [7] Further correspondence was sent to the parties on 14 March 2025, noting that Chambers was yet to receive the requested status update, and requesting an update by 17 March 2025. The parties were reminded that the remainder of the Directions, and the hearing date, remained on foot and would only be vacated upon confirmation of executed Terms of Settlement, and that the Applicant remained required to file her material by 4:00pm Tuesday, 25 March 2025.

• [8] The Applicant did file any material by the due date of 25 March 2025, nor confirm that Terms of Settlement had been executed.

• [9] On 26 March 2025 Chambers wrote to the Applicant regarding her overdue material and, after setting out the history of the matter as outlined above, stated:

"The Deputy President notes that you have not filed any of your material - witness statements, other documentary evidence and submissions - that you were required to file by 4pm yesterday, nor has the Deputy President received any explanation for the failure to provide that material, or been advised that Terms of Settlement have been executed.

If it is now the case that you wish to discontinue your matter, please reply to this email stating that is your intention (in which case the directions and hearing date will be vacated, the Deputy President will note your matter has been discontinued and close the Commission's file).

Otherwise, by midday tomorrow AEDT Thursday 27 March 2025 you must file and serve:

1. All of the material that ought to have been submitted by 4pm yesterday;
2. Reasons for your non-compliance, including any supporting evidence.

Failure to comply with the above requirements might lead to you matter being dismissed without being heard: see s.587 of the Fair Work Act 2009 (Act), or dismissed for failure to comply with a direction, upon an application by the employer (although the Deputy President advises that no such application has been received at this stage): see s.399A of the Act. Any decision dismissing you application will be emailed to the parties, and published on the Commission's website."

• [10] The Applicant did not file any material nor provide any explanation to the Commission why she hasn't. She has not contacted chambers at all.

• [11] Putting aside the Applicant's unexplained failure to comply with the directions, it is now clear that she is not taking steps to prosecute her claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the Applicant in the correspondence from chambers and by the directions issued on 3 March 2025. I am also satisfied that, in the absence of any evidence filed in accordance with the directions, the Applicant's claim has no reasonable prospects of success.

• [12] Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.

• [13] Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is as follows:

(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

(c) the application has no reasonable prospects of success."

• [14] I consider that the clause "Without limiting when the FWC may dismiss an application" at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) - (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper (or any) explanation for that non-compliance.

• [15] When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) - (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the applicant has not shown a willingness to prosecute her case. She has failed to comply with directions of the Commission and has not provided an explanation for her failure to comply with directions, including in circumstances where it was expressly foreshadowed that her application would be dismissed if that information was not provided. There is also no material before me that would demonstrate her claim has a reasonable prospects of success.

• [16] Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act. If, as is quite likely the case, the parties have resolved their differences by a settlement agreement, then I would also be minded to dismiss the matter as having no reasonable prospects of success on that basis.

• [17] An Order[1] to this effect will be issued with this Decision.

[1] PR785675.

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