Alice Parker v Murray Fitzgerald

[2022] FWC 3046

[2022] FWC 3046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alice Parker
v

Murray Fitzgerald

(U2022/8976)

COMMISSIONER BISSETT MELBOURNE, 16 NOVEMBER 2022

Application for an unfair dismissal remedy

1. On 5 September 2022 Miss Alice Parker made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act).

1. Miss Parker alleged that she was unfairly dismissed by Murray Fitzgerald (the Respondent) on 26 August 2022, or in the alternative, on 2 September 2022.

1. The Respondent in the matter contacted the Commission on 17 October 2022 to inform the Commission that the Applicant was in fact employed by a labour-hire agency, and that the Respondent had been incorrectly named in Miss Parker’s application.

1. The Commission communicated this to Miss Parker on 17 October 2022 by email.

1. The Commission received an email from Miss Parker on 18 October 2022 acknowledging that the Respondent named in her application was not her employer, however she indicated that she still wished to pursue the named Respondent for her unfair dismissal claim.

1. Miss Parker’s application was listed for a conciliation conference on 20 October 2022. Despite numerous attempts over a 30-minute period the Applicant failed to answer the telephone and consequently, the conciliation could not proceed. Correspondence in relation to her non-attendance was sent to the Applicant on the same day but no response was received.

1. On 7 November 2022 the Commission sent an email to Miss Parker outlining the progression of her application to date, including her failure to attend conciliation or respond to the correspondence sent by the Commission immediately following the failed conciliation conference. The Commission directed Miss Parker to advise if she wished to continue her application and informed her that if she failed to reply by 4.00pm on 11 November 2022 her application may be dismissed without any further correspondence to her.

1. No response was received to that correspondence.

1. On 11 November 2022 a further email was sent to Miss Parker to inform her that the Commission had not received any reply from her. The Commission directed Miss Parker to respond by 4.00pm 14 November 2022. The Commission reiterated to Miss Parker that if no response was received, her application may be dismissed without further correspondence to her.

1. No response was received.

1. Miss Parker’s email on 18 October 2022 was the last correspondence that the Commission received from Miss Parker who has since failed to respond to all further telephone calls and emails from the Commission.

1. Section 587(1) of the FW 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 prospect of success.

1. Having regard to the circumstances of the matter and the non-compliance of the Applicant with the directions of the Commission, I am satisfied that the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(c) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR747991

Printed by authority of the Commonwealth Government Printer

<PR747990>