Application by Jessica Plech

[2024] FWC 2345

[2024] FWC 2345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Application by Jessica Plech

(U2024/5620)

DEPUTY PRESIDENT EASTON SYDNEY, 2 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed.

1. On 17 May 2024 Ms Jessica Plech made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. For the following reasons I am satisfied that Ms Plech’s application should be dismissed for want of prosecution.

1. It seems likely that Ms Plech was a direct employee of a sole trader. A sole trader in WA is not a National System Employer and Ms Plech has not provided any information, evidence or response to the contrary.

1. On 22 May 2024 Commission staff tried to contact Ms Plech to discuss whether or not the respondent is a national system employer. A voicemail message was left asking her to contact the Commission on the helpline number.  The voicemail message was followed up with a letter and a SMS on 22 May 2024.

1. A Commission staff member spoke to Ms Plech on 5 June 2024 and suggested that she seek legal advice, and provided contact details from information from the WAIRC. Ms Plech indicated that she would do so and that, phone numbers were provided to enable her to do so.  Ms Plech said she would ring WAIRC the next day and that if the Commission did not hear any further from her that she gave permission for her application to be discontinued. 

1. Further attempts were made to contact Ms Plech by Commission staff and my chambers on 11 June 2024 and 5 July but to no avail. To date no further response has been received from Ms Plech.

1. Division 1 of Part 3-2 of the Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Ms Plech does not respectively fall within the scope of this definition.

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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.”

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

1. I am satisfied that Ms Plech has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Ms Plech’ claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR778842).

DEPUTY PRESIDENT

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<PR778841>