Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - s.587 - application dismissed.

[1] The Applicant in this matter, Ms Mereraina Kora ("the Applicant") lodged an application under s.394 of the Fair Work Act 2009 ("the Act") on 29 April 2015. By that application the Applicant was seeking an unfair dismissal remedy arising from her dismissal by Cardno Staff Pty Ltd T/A Cardno ("the employer").

[2] A conciliation conference before a Fair Work Commission staff conciliator was conducted on 20 May 2015. The conciliation was not successful in resolving the matter, and the matter was referred for arbitration.

[3] A notice of listing for a hearing and accompanying directions for filing materials were issued on 17 June 2015, and the Applicant was required to file her witness statements and outline of submissions by 1 July 2015. These directions were sent to the Applicant by email and post. No material was received from the Applicant by that date.

[4] On 3 July 2015 I wrote to the Applicant (via her email address as well as a hard copy by express post) in the following terms:

I refer to the Notice of Listing and Directions issued on 17 June 2015, which were sent to you by email and post (see attached).

In accordance with these directions, you were required to file any witness statements you intend to rely on and a brief outline of submissions, by COB on 1 July 2015. To date, we have not received any material from you.

If you do not provide the materials as required under the Directions by COB on Wednesday 8 July 2015 (as well as providing a reasonable explanation for the failure to comply), the Senior Deputy President will presume you no longer wish to prosecute your case and will dismiss your application under s.587 of the Fair Work Act 2009 (reproduced below). Your failure to file in accordance with the directions may also expose you to an application by the Respondent that your application be dismissed (under s.399A of the Act).

Please notify the Commission promptly if you are for some reason incapable of meeting the requirements, such as because of illness or injury.

If you wish to withdraw your application for unfair dismissal remedy, please advise.

Section 587 Dismissing applications

[5] No response was received from the Applicant by the stipulated date.

[6] On 10 July 2015 I sent the following correspondence to the Applicant by email:

I refer to your application for unfair dismissal remedy.

Senior Deputy President Richards notes that he has not had a response to the below email of 3 July 2015.

If you do not provide any advice or explanation to the Commission by midday on Monday 13 July 2015, your application will be dismissed.

[7] No response to this correspondence has been received by the date of this decision.

[8] In light of the Applicant's failure to respond, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act, which provides 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.

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:

[9] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that goes further and suggests it should also only be used 'sparingly', which is a different notion altogether- see [2013] FWC 7080 at 39).

[10] In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application she has agitated, despite the Commission's approaches.

[11] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the "wide" scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[12] In the Full Bench decision in Sayer v Melsteel [2011] FWAFB 7498, the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed to prosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):

When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.

[13] In the circumstances now before me, the employer has provided a response to the Applicant's claims by way of its Form F3. The employer's position is that the Applicant was dismissed for serious misconduct, relating to returning a positive result to a random alcohol test. The employer, on the face of its claims, has "a defence of substance" against the claims, or at least "a defence to the action".

[14] The Full Bench in Viavattene v Health Care Australia [2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces "an unwillingness to participate in proceedings", and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended 'to ensure that a 'fair go all round is accorded to both the employer and employee concerned' (s.381).

[15] I exercise my discretion in this regard in the knowledge that the employer's materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute her claim despite being afforded opportunity to do so. I dismiss the application for those reasons.

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