Andrea Black v The Trustee for Raceview Kindergarten and Child Care Unit Trust

[2024] FWC 3082

[2024] FWC 3082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrea Black
v

The Trustee for Raceview Kindergarten and Child Care Unit Trust

(U2024/10649)

COMMISSIONER SPENCER BRISBANE, 7 NOVEMBER 2024

Application for an unfair dismissal remedy – non-compliance – application dismissed.

1. Andrea Black (the Applicant) was employed by the Trustee for Raceview Kindergarten and Child Care Unit Trust (the Respondent) from 30 January 2024 to 3 September 2024.

1. On 10 September 2024, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. In its Form F3 response dated 30 September 2024 the Respondent raised the jurisdictional objection that the Applicant was not dismissed.

1. On 9 October 2024, the Applicant and the Respondent appeared at a conciliation before a staff conciliator, which did not resolve the application.

1. Later that same day the Commission attempted to make phone calls to the Applicant on her nominated telephone number. The Commission called the Applicant at 2:38PM, 3:39PM and 5:37PM, but the Applicant did not answer. The Commission was unable to leave voicemail messages.

1. On 10 October 2024, the Commission sent an email to the Applicant noting the unsuccessful phone calls and requesting the Applicant confirm if she wished to continue the application. The Applicant did not respond.

1. On 22 October 2024, the Commission issued a notice of listing informing the Applicant that the matter had been allocated to my Chambers and was listed for conference on 6 November 2024.

1. On 23 October 2024, the Commission sent the Applicant a further email. The email stated that the Applicant had not responded to the Commission’s email of 10 October 2024, and requested the Applicant confirm whether she wished to continue the application by 31 October 2024. In this email the Applicant was advised that the application may be dismissed if no response was received.

1. On 29 October 2024, the Commission attempted to call the Applicant on her nominated telephone number. The Applicant did not answer, and a voicemail message was left requesting she urgently contact the Commission to confirm if she wished to continue the application.

1. Later that same day, the Commission sent a final email to the Applicant requesting she confirm if she wanted to continue the application by 12:00pm on 31 October 2024, and if she did not the application would be dismissed.

1. On 6 November 2024, the Applicant did not attend the conference.

1. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

1. 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.

1. 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).

1. In the circumstances I have decided to dismiss the application pursuant to s.587(3)(a) of the Act.

1. I Order accordingly.

COMMISSIONER

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