Alisa Barker v Castlereagh Automotive Pty Ltd T/A Nepean Motor Group

[2019] FWC 394

[2019] FWC 394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alisa Barker
v
Castlereagh Automotive Pty Ltd T/A Nepean Motor Group
(U2018/10533)

DEPUTY PRESIDENT DEAN SYDNEY, 6 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 12 October 2018, Miss Alisa Barker made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Barker’s application states that she commenced employment with Castlereagh Automotive Pty Ltd T/A Nepean Motor Group (“Nepean Motor Group”) on 15 March 2013 and that she was dismissed on 27 September 2018.

[3] On 16 November 2018, Nepean Motor Group filed an Employers Response (form F3) objecting to the application on the grounds that Miss Barker’s application had been filed outside of the 21 day period. Nepean Motor Group submitted that Miss Barker had resigned on 15 August 2018.

[4] A conciliation conference scheduled for 21 December 2018 did not proceed because Miss Barker did not want to participate.

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

[6] On 9 January, the Commission wrote to Miss Barker asking for a written explanation as to the late filing of her application. She was asked to provide this statement by no later than 4pm Wednesday 16 January 2019. No response was received.

[7] On 17 January 2019, correspondence was sent to Miss Barker noting she had previously been directed to file a statement in the Commission but had not done so. She was given until 4pm Friday 18 January 2019 to respond and was advised that in the absence of any material being received her application may be dismissed.

[8] Final attempts were made to contact Miss Barker by telephone on 17 and 23 January 2019.

[9] To date Miss Barker has not responded to any of the Commission’s correspondence.

[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

(c) the application has no reasonable prospects of success.

(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

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