Ann Brita Nilsson v McCorkell & Associates Limited

[2023] FWC 3086

[2023] FWC 3086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ann Brita Nilsson
v

McCorkell & Associates Limited

(U2023/148)

VICE PRESIDENT CATANZARITI SYDNEY, 24 NOVEMBER 2023

Application for an unfair dismissal remedy

1. Ann Brita Nilsson (the Applicant) was employed by a company that went into liquidation, the appointed Liquidators, McCorkell & Associates Limited (the Respondent) were named as the respondent in the F2 application.  The Applicant was employed from 12 August 2014 until she was dismissed on the 15 December 2022.

1. On the 6 January 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A response was provided by the Respondent on 12 January 2023 providing information about the liquidation and that they had been appointed as the liquidator.

1. On the 13 January 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue that the former employer was in liquidation and she was required to respond by 23 January 2023. The Applicant responded on 23 January 2023.

1. An email was sent in reply from my Chambers on 9 February 2023 advising the Applicant that her matter cannot proceed with the Fair Work Commission (the Commission) until she receives an order from the Supreme Court.

1. Further correspondence was sent to the Applicant on 7 March 2023, to which she replied that she wished to continue with her matter. 

1. On 19 May 2023 and 15 June 2023 emails were sent to the Applicant enquiring as to whether she had obtained permission from the Supreme Court to continue her case.

1. The Applicant emailed an enquiry on 21 June 2023 as to “What is the process by which to obtain permission from the Supreme Court?.  My Chambers responded by saying that we are unable to provide legal advice and reiterated to the Applicant that for her application to continue she needs to obtain permission from the Supreme Court.  The Applicant was provided with a referral to the Fair Entitlements Guarantee as an alternative.

1. On 14 November 2023 a final notice was emailed to the Applicant and she was required to respond by 5:00pm on 20 November 2023. It was in this correspondence that the Applicant was advised her application would be dismissed without any notice if no response was received.
   
   

2. To date, the Applicant has not responded to the final notice 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 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 for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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