Ainsley Faust v Poolside Melton

[2022] FWC 3214

[2022] FWC 3214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ainsley Faust
v

Poolside Melton

(U2022/9870)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

Application for an unfair dismissal remedy – applicant deceased after conciliation – no reasonable prospects of success – application dismissed.

1. Ms Ainsley Faust (the Applicant) made an application to the Fair Work Commission (Commission) on 7 October 2022 in which she sought a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Faust was employed by Poolside Melton (the Respondent).

1. The matter was listed for conciliation before a staff conciliator on 4 November 2022. At this conciliation, a tentative agreement was made.

1. Sadly, on 8 November 2022, the Commission received correspondence indicating that Ms Faust had passed away.

1. On 9 November 2022 the Commission received correspondence from a friend of Ms Faust enquiring as to whether the application could proceed or if the conciliated agreement could stand.

1. On 14 November the Commission responded to the correspondence indicating that the matter had been referred to me and it was my preliminary view that the matter could not proceed, but sought the views of the applicant’s family. No response was received.

1. Previous decisions of this Commission[1] have found that the right to make an application for a remedy for unfair dismissal is a personal right. In Rohrlach v L.M Robertson & P.F. Robertson T/A PF & LM Robertson[2] Commissioner Simpson summarised the position as follows: 

As the Deputy President observed in Stan v Frontline Australasia,[3] s.394 of the Fair Work Act 2009 confers upon the aggrieved employee only the right to make an application for a remedy for unfair dismissal, not an entitlement to the remedy itself.[4] He further noted that the nature of the right to apply for the remedy, combined with the ‘personal and discretionary nature of the remedy’ that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute ‘something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order’.

1. I adopt this approach.

1. Section 587 of the Act provides:

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

1. Ms Faust’s death prevents any other person from dealing with the application (to either pursue or discontinue the application) as the right conferred by the FW Act is not assignable.

1. Accordingly, I am satisfied the application has no reasonable prospects of success and I therefore that the application be dismissed under s. 587(1)(c).

COMMISSIONER

[1] Stan v Frontline Australasia[2014] FWC 5457 confirmed in Rohrlach v L.M Robertson & P.F. Robertson T/A PF & LM Robertson[2018] FWC 2798 and Walker v Collins Transport Group T/A Collins Adelaide[2019] FWC 8019

[2] [2018] FWC 2798 at [9]

[3] [2014] FWC 5457

[4] Ibid at [7]

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