Amy Parkes v Dacan Pty Ltd

[2023] FWC 3199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amy Parkes
v

DACAN Pty Ltd

(U2023/840)

COMMISSIONER HUNT

BRISBANE, 1 DECEMBER 2023

Application for an unfair dismissal remedy

On 2 February 2023, Ms Amy Parkes made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging that she had been dismissed from her employment with DACAN Pty Ltd (the Respondent) and that her dismissal was harsh, unjust and unreasonable.

On 22 May 2023, the Respondent advised that it had been placed into voluntary administration on 10 May 2023. On 16 June 2023, a Decision[1] was issued staying the matter until leave of a Court was granted.

On 11 November 2023, I caused my Chambers to send correspondence to Ms Parkes’ nominated email address requesting an update and particularly, whether Ms Parkes intended to seek the leave of the Court. Ms Parkes was asked to reply by 27 November 2023. The Commission has not received any correspondence from Ms Parkes. On 1 December 2023, I caused my Chambers to send correspondence to Ms Parkes again, advising her that her matter is at risk of being dismissed as it is apparent, she does not intend to seek the leave of the Court.

The Commission has not received any response from Ms Parkes.

Section 587 of the Act provides as follows:

“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 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.”

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Ms Parkes, I am satisfied that Ms Parkes’ application has no reasonable prospects of success. Accordingly, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to ss.587(3)(a) of the Act.

An Order to this effect will be issued with this decision.

COMMISSIONER

[1] [2023] FWC 1409.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Amy Parkes has filed an application for unfair dismissal against DACAN Pty Ltd with the Fair Work Commission, alleging that her dismissal was unjust and unreasonable. The Respondent, DACAN Pty Ltd, informed the Commission that it had entered voluntary administration. Despite requests for an update on whether Ms Parkes would seek leave from the Court to proceed with the application, there has been no response from Ms Parkes. The Commission has determined that the application lacks reasonable prospects of success due to the lack of response and the need for Court leave, which has not been sought.

The key legal issue the Commission needed to address was whether Ms Parkes' application for unfair dismissal had reasonable prospects of success under the Fair Work Act 2009. Given the Respondent's voluntary administration and the absence of any indication from Ms Parkes that she intended to seek leave of the Court, the Commission considered the application to be without reasonable prospects of success. The statutory provision s.587(1)(c) of the Act permits the dismissal of an application if it has no reasonable prospects of success. Commissioner Hunt found that the application was at risk of dismissal and decided to dismiss it under the Commission's initiative.

Following the reasoning above, the Fair Work Commission dismissed Ms Parkes' application for unfair dismissal. The dismissal was based on the lack of reasonable prospects of success due to the absence of any action from Ms Parkes to seek leave of the Court. Consequently, the Commission issued an order dismissing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established