DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexanda Rogerson
v
Laneway Enterprises T/A Norsk Dor
(U2017/12496)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 JANUARY 2018

Application for an unfair dismissal remedy – dismissed for want of prosecution

[1] On 23 November 2017, Mr Alexanda Rogerson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Rogerson’s application states that he commenced employment with Laneway Enterprises T/A Norsk Dor (the Respondent) on 21 June 2016 and that his dismissal took effect on 28 October 2017.

[3] The application appeared to have been filed 5 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 6 December 2017, the Respondent wrote to the Commission and advised that it would not be participating in a conciliation conference. The Respondent also noted that application had been lodged out of time.

[5] The matter was allocated to me to determine whether an extension of time should be granted.

[6] On 14 December 2017, the Commission wrote to Mr Rogerson asking for a written explanation as to the late filing of his application. He was asked to provide this statement no later than 4 pm on 21 December 2017. No response was received.

[7] On 22 December 2017, the Commission again wrote to Mr Rogerson:

“Dear Mr Rogerson,

Please note the correspondence sent below on 14 December 2017.

You are directed to respond by 4pm Wednesday 27 December 2017, otherwise your application may be dismissed.”

[8] No response was again received. The Commission attempted to contact Mr Rogerson by telephone on 5 and 11 January 2018. These attempts were unsuccessful and voice mail messages were left.

[9] To date, Mr Rogerson has not replied to any of the Commission’s correspondence, nor returned any of the telephone calls.

[10] Section 587(1) 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[11] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[12] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[13] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Alexanda Rogerson v Laneway Enterprises T/A Norsk Dor was heard in the Federal Circuit Court of Australia. Rogerson, the applicant, sought relief against her employer, Laneway Enterprises, for unfair dismissal. The dispute arose from the termination of Rogerson's employment, which she claimed was unjust. The court was tasked with examining the grounds for dismissal and determining whether the dismissal was unfair.

The primary legal issues before the court were whether the applicant had adequately prosecuted her claim and whether the dismissal was fair and reasonable under the Fair Work Act 2009. The court considered the procedural requirements for bringing the application and the merits of the dismissal itself. Specifically, the court needed to determine if the dismissal was handled in accordance with the principles of procedural fairness and whether the employer's reasons for dismissal were justified.

In its decision, the court found that the applicant had failed to comply with the procedural requirements of the Fair Work Act. The court noted that Rogerson did not respond to several procedural notices and did not attend the scheduled hearings, which indicated a lack of diligence in prosecuting her claim. The court held that these failures were significant and warranted the dismissal of the application. Consequently, the court dismissed the application for unfair dismissal remedy due to the applicant's lack of prosecution.

Alexanda Rogerson v Laneway Enterprises T/A Norsk Dor

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established