Amanda Chapman v Deloitte Risk Advisory

[2024] FWC 774

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Chapman
v

Deloitte Risk Advisory

(U2023/12834)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 APRIL 2024

Application for an unfair dismissal remedy

Amanda Chapman was dismissed from her employment on 15 December 2023. On 20 December 2023 Ms Chapman filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In her application Ms Chapman named “Deloitte Risk Advisory” as her former employer.

The legal business name nominated by the Respondent in its F3 – Employer’s Response Form was Deloitte Services Pty Ltd. An unfair dismissal application can only be made against the entity that employed the Applicant.

A conciliation conference was scheduled on 23 February 2024 however Ms Chapman did not attend.

On 29 February 2024, correspondence was sent to Ms Chapman regarding the legal name of her former employer. The correspondence invited Ms Chapman to request an amendment to her application to name a different entity as her former employer, or to provide submissions as to why the entity she nominated was the correct entity. Ms Chapman was required to respond by 7 March 2024. Ms Chapman did not respond to this correspondence.
Further correspondence was sent to Ms Chapman on 8 March 2024 making the same request. Ms Chapman was required to respond by 5:00pm on 13 March 2024. Ms Chapman was also advised that her application may be dismissed without further notice if she did not respond. Ms Chapman did not respond to this correspondence.

On 14 March 2024 the Commission attempted to contact Ms Chapman via telephone three times. However, Ms Chapman could not be reached, and her telephone did not allow voicemail messages to be left.

On the same day a further email was sent asking Ms Chapman to respond to the Commission’s correspondence as soon as possible and by no later than 21 March 2024. Ms Chapman was also warned that if she did not contact the Commission her application would be dismissed without further notice.

To date, Ms Chapman has not responded to any of the Commission’s attempts to contact her.

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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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
(b) on application.

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).

In the circumstances I have decided to dismiss Ms Chapman’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR772742).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Amanda Chapman filed an application for unfair dismissal against Deloitte Risk Advisory, alleging that her termination on 15 December 2023 was unjust. The application was submitted on 20 December 2023. However, the entity named as the employer in the application, Deloitte Risk Advisory, was not the legal employer. Instead, the entity that employed Ms Chapman was identified as Deloitte Services Pty Ltd. The Commission sent multiple communications to Ms Chapman requesting that she correct the name of the employer in her application or provide justification for the entity she had named. Ms Chapman did not respond to any of these communications, despite multiple opportunities to do so.

The primary legal issue before the Commission was whether Ms Chapman's application should be dismissed for want of prosecution. The Commission had to determine if the application was proceeding in accordance with the Fair Work Act 2009 and whether it had reasonable prospects of success. Given Ms Chapman's failure to respond to the Commission's requests to correct the employer's name and to provide any justification, the Commission concluded that the application did not meet the requirements of the Act and had no reasonable prospects of success. The Deputy President decided to dismiss the application under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if it is not proceeding in accordance with the Act.

The Commission dismissed Ms Chapman's application for unfair dismissal on 2 April 2024. The dismissal was based on Ms Chapman's failure to correct the employer's name in her application and her lack of response to multiple communications from the Commission. The Deputy President found that the application did not comply with the requirements of the Fair Work Act and had no reasonable prospects of success. An order was made to dismiss the application (PR772742).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established