Annabel Kwan v Critical Hit Entertainment Pty Ltd

[2023] FWC 2303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Annabel Kwan
v

Critical Hit Entertainment Pty Ltd

(U2023/5994)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Annabel Kwan (the applicant) lodged an application against Critical Hit Entertainment Pty Ltd (the respondent) on the 4^th of July 2023.
The respondent raised an objection stating that they do not believe the applicant is an employee.
On the 15^th of August 2023, correspondence was sent to the applicant in relation to the jurisdictional objection mentioned above and she was required to respond by the 22^nd of August 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 29^th of August 2023 and she was required to respond by 5:00pm the 1^st of September 2023. It was in this correspondence that the applicant was advised her application would be dismissed without any notice if no response was received.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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.

(2) Despite paragraphs (1)(b) and (c), 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) 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 the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Annabel Kwan, an applicant, filed a claim against Critical Hit Entertainment Pty Ltd, the respondent, seeking relief for an alleged unfair dismissal under the Fair Work Act 2009. The matter was brought before the Fair Work Commission, with the primary issue being whether the applicant was an employee of the respondent. The respondent contested the applicant's status as an employee, which directly impacted the jurisdiction of the Commission to hear the case.

The central legal question the Fair Work Commission had to resolve was whether the applicant qualified as an employee under the Fair Work Act, given the respondent's objection. This required an examination of the employment relationship between the parties, including the terms of the engagement, the nature of the work performed, and the control exerted by the respondent over the applicant. The Commission had to determine if the applicant's claim met the statutory criteria for employee status and whether it had jurisdiction to proceed with the unfair dismissal application.

In evaluating the matter, the Fair Work Commission considered the procedural steps taken, including the respondent's objection and the applicant's failure to respond to correspondence from the Commission. The Commission found that the applicant did not engage with the proceedings despite multiple opportunities to do so, leading to the conclusion that the application was not being actively prosecuted. As per section 587(3)(a) of the Fair Work Act, the Commission decided to dismiss the application for want of prosecution. This decision was made in line with the statutory provisions that allow the Commission to dismiss applications that are not being pursued by the applicant.

The Fair Work Commission issued an order dismissing the application for unfair dismissal due to the applicant's lack of engagement with the proceedings. This outcome underscored the importance of timely and substantive responses to jurisdictional objections and procedural communications from the Commission.

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