1
Fair Work Act 2009
s.365—General protections
McLeod
v
Kulgera Trading Company Pty Ltd
(C2014/2560)
VICE PRESIDENT CATANZARITI SYDNEY, 31 MARCH 2014
Application to deal with contraventions involving dismissal - dismissed pursuant to s.587 of
the Fair Work Act 2009.
[1] On 6 January 2014, Ms Suzanne McLeod (Ms McLeod) submitted an application
pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the
Commission) to deal with a general protections dispute involving dismissal. Ms McLeod
commenced employment with Kulgera Trading Company Pty Ltd (the Respondent) on 2
August 2013, and was dismissed in December 2013.
[2] This matter was initially listed for a conference to be heard by video link between the
Sydney and Darwin offices of the Fair Work Commission on 21 January 2014. On 9 January
2014, the parties were sent a Notice of Listing advising them of this. On 15 January 2014,
however, the parties were sent a revised Notice of Listing informing them that the matter was
now listed for a teleconference on the same date and time as the initial listing, and thus there
was no need to attend the Fair Work Commission in Darwin.
[3] On the day of the hearing, my associate contacted Ms McLeod on the mobile number
she had provided in her application in order to connect her to the teleconference. Ms McLeod
informed my associate that she was not aware of the day’s proceedings, and was not available
to participate due to prior engagements. My associate asked Ms McLeod whether she had
received the Notices of Listing which had been sent to the fax number provided in her
application, and Ms McLeod responded that the fax number that she provided in her
application did not belong to her, but an acquaintance of hers. My associate asked Ms
McLeod the best way to get in touch with her, to which Ms McLeod responded that the email
address that she had provided in her application was the best means of contact.
[4] Following this, I scheduled another teleconference for Monday 3 February 2014. On
21 January 2014, a Notice of Listing was sent to both parties, Ms McLeod’s being sent to the
email address listed on her application. On Monday 3 February 2014, Ms McLeod did not
answer her mobile phone at the time of the listed teleconference. My associate left multiple
voicemail messages asking Ms McLeod to get in touch with the commission and sent her an
email advising her that the Vice President was attempting to convene a teleconference, but Ms
McLeod made no contact with the Commission.
[2014] FWC 2112
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 2112
2
[5] On 3 February 2014, following Ms McLeod’s absence from the scheduled
teleconference, an email was sent to Ms McLeod and copied to the Respondent requesting
that she inform me of her intentions with respect to continuing her claim. Ms McLeod was
informed that if no response was received before 7 February 2014, I would begin considering
whether or not to dismiss her application pursuant to s.587 of the Fair Work Act 2009. Ms
McLeod did not respond to this email.
[6] On 17 February 2014 another email was sent to Ms McLeod with the Respondent
copied in informing her that if she did not contact the Commission prior to Monday 24
February 2014, I would begin the process of determining whether or not to dismiss her
application. Ms McLeod did not respond to this email.
[7] On 20 March 2014 an email was sent to Mr Reg Phillips of the Respondent with a
copy to Ms McLeod. The Respondent was informed that it was my intention to dismiss Ms
McLeod’s application, and that I sought the Respondent’s views on the matter. The
Respondent was informed that if I did not hear from it prior to close of business Monday 24
March I would, consistent with my previous indications, proceed with my intention to issue a
decision dismissing Ms McLeod’s application. No response was received from either the
Respondent or Ms McLeod.
Legislative Provisions
[8] Section 587 of the Act provides as follows:
“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
[2014] FWC 2112
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(b) on application.”
[9] In Rebecca Tomas v Symbion Health [2011] FWA 5458, Commissioner Gooley (as
she then was) stated the following with respect to the operation of s.587:
“[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.”
Consideration
[10] As Ms McLeod has not responded to the Commission’s repeated attempts to get in
contact with her, and in light of her non-appearance at the teleconference listed for 3 February
2014, I have decided to dismiss her application. In accordance with the principle of a fair go
all round to both employers and employees, I find that Ms McLeod’s non-participation in the
Commission’s processes has already required the Respondent to expend resources in
responding to a claim that Ms McLeod does not seem to have any intention of following
through. Further, in taking into account fairness, justice, equity and good conscience I find
that Ms McLeod has been given ample opportunity to make contact with the Commission, but
has failed to do so.
[11] While the Respondent has not made an application seeking that Ms McLeod’s
application be dismissed I have, on my own initiative pursuant to s.587(3)(a) of the Act,
found that the application should be dismissed. I order accordingly.
ORDER
1. The application lodged by Ms McLeod under s.365 of the Fair Work Act 2009 on 6
January 2014 is dismissed pursuant to s.587 of the Fair Work Act 2009.
VICE PRESIDENT
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