Carol Ann Roomes v Kevan Boulton (Kidspace)

[2023] FWC 681

[2023] FWC 681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Carol Ann Roomes
v

Kevan Boulton (Kidspace)

(U2023/567)

DEPUTY PRESIDENT LAKE BRISBANE, 21 MARCH 2023

Application for an unfair dismissal remedy - out of time - failure to comply with directions - application dismissed under s.587

1. This decision concerns an application by Ms Carol Ann Roomes (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).  The Applicant was employed by Kidspace (the Respondent) and claimed that she was unfairly dismissed.

1. The Applicant lodged her Form F2 application with the Office of Fair Trading Queensland on 5 January 2023 and it was received by the Fair Work Commission on 23 January 2023.  No Form F3 Employer Response was filed by the Respondent. The Applicant states she was dismissed on 18 December 2022. The matter was allocated to my Chambers for hearing and determination.

1. The Application was lodged out of time. The Form F2 provided the Applicant information on where to lodge the Application.  No response was received from the Applicant or Respondent upon listing the matter on 20 February 2023. Multiple attempts were made to contact the Applicant by email on 17 March 2023 and through call. No response was received from the Applicant.

1. I have concluded that in circumstances, the Applicant failed to comply with my reasonable direction and therefore, has failed to prosecute her claim. I provided numerous opportunities for an explanation, but no correspondence with Chambers was received. As indicated in Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[2011] FWA 4812, a failure to provide evidence could render an application with no reasonable prospect of success. However, if such an approach was found not to be sufficient, it is clear that ‘the introductory words in s.587(1) indicate, the circumstances in which the Fair Work [Commission] may dismiss an application are not limited to those matters in s.587 of the Act.’2

1. For completeness, on 17 March 2023, my Chambers sent an email asking the number of employees within the business as the Applicant indicated the Respondent had less than 15 employees in her Form F2. The Respondent sent payroll records at the date of the alleged dismissal lodged by the Applicant. It was confirmed that including the Applicant, the Respondent had only 8 employees at the time of alleged dismissal. The Applicant’s application would not have met the minimum employment period.

1. I am satisfied that Chambers has taken appropriate steps to inform the Applicant of the consequences of failing to provide the relevant documentation.  I am also satisfied that sufficient time and warning was given to comply. For the purposes of completeness, the Application has been lodged out of time and does not meet the minimum employment period. I find it is appropriate that I exercise my discretion, in this instance, to dismiss the Applicant’s unfair dismissal application pursuant to s587.

DEPUTY PRESIDENT

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