Angela Naughton v Ocean Surgical Pty Ltd T/A Profilo Surgery Division

[2019] FWC 7343

[2019] FWC 7343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Naughton
v
Ocean Surgical Pty Ltd T/A Profilo Surgery Division
(U2019/10724)

VICE PRESIDENT CATANZARITI SYDNEY, 24 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] Angela Naughton was employed by Ocean Surgical Pty Ltd (the Respondent) until her dismissal took effect on 17 September 2019

[2] On 24 September 2019, Miss Naughton applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] On 27 September 2019, the Respondent filed an Employer’s Response (Form F3), objecting to Miss Naughton’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. Miss Naughton said she first stared working for the Respondent on 24 October 2018. The Respondent said that Miss Naughton resigned effective 4 February 2019, then started working for it again on 17 April 2019. It submitted that only the period of employment from 17 April 2019 to 17 September 2019 is relevant to determining whether Miss Naughton completed the minimum employment period.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Miss Naughton on 3 October 2019, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 11 October 2019. However, we received no response from Miss Naughton by that time.

[5] On 14 October 2019, my chambers sent further correspondence to Miss Naughton, directing her to provide a response by 4:00 pm on 17 October 2019. She was advised that in the absence of a reply, her application may be dismissed.

[6] To date, Miss Naughton has not responded to any of the Commission’s correspondence.

[7] 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 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.”

[8] The words, “[w]ithout 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).

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

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