s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 30 March 2022 Mrs Jasmine Lee Stewart (Mrs Stewart) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Enable Western Australia (Enable WA) contravened the general protection provisions of the FW Act.

• [2] On 20 April 2022, Enable WA filed a Form F8A - Response to a General Protections Application alleging that Mrs Stewart was not dismissed by Enable WA (Jurisdictional Objection).

• [3] A conciliation conference with a Staff Conciliator of the Fair Work Commission was listed on 8 July 2022, however the conference did not proceed due to non-attendance of the Mrs Stewart.

• [4] On 9 August 2022, directions were issued to the Parties (Directions). Paragraph [6] of the Directions, required Mrs Stewart to file with the FWC and serve on Enable WA by 4pm on Tuesday 16 August 2022 an outline of submissions, any evidence on which she relied and copies of any authorities on which she relied in relation to the Jurisdictional Objections. The Directions stated that compliance with the Directions was mandatory and that a failure to comply may disadvantage the party concerned.

• [5] Mrs Stewart failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions.

• [6] On 17 August 2022, Chambers wrote to Mrs Stewart noting that she had failed to comply with the Directions and inviting her to provide by 4pm (AWST) Monday 22 August 2022 reasons why the FWC should not dismiss the Application pursuant to section 587 of the FW Act.

• [7] Section 587 of the FW Act 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

(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:

• [8] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss dismissing an application made pursuant to section 365 per se.

• [9] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.

• [10] For example, in Mcleod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [11] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[2] (Tomas) in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter."

• [12] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.

• [13] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. The power to dismiss a substantive application should only be exercised cautiously and sparingly 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]

• [14] Mrs Stewart has failed to file any materials in support of the Application or reply to any correspondence from Chambers.

• [15] Due to the history of non-compliance, I am not satisfied that Mrs Stewart is likely to comply with further directions of the FWC.

• [16] In the circumstances, and on balance, it is appropriate that the Application be dismissed for want of prosecution under section 587 of the Act.

• [17] An order[4] to this effect will issue with this Decision.

[1] [2014] FWC 2112.

[2] [2011] FWA 5458.

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

[4] PR745064.

Printed by authority of the Commonwealth Government Printer