Caroline Rogers v Blue Care

[2023] FWC 3348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Caroline Rogers
v

Blue Care

(U2023/9706)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 DECEMBER 2023

Application for an unfair dismissal remedy

Caroline Rogers (the Applicant) was employed by Blue Care (the Respondent) from 6 November 2023 until she was terminated on 25 September 2023.

On 2 October 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The legal business name nominated by the Respondent in their F3 – Employer’s Response Form in this matter was Uniting Church in Australia Property Trust (Q.).

On 28 November 2023, correspondence was sent to the Applicant in relation to the legal business name discrepancy and she was required to respond by 6 December 2023. No response was received at this time.

Further correspondence was sent to the Applicant and her representative, Employee Dismssals, on 7 December 2023 and she was required to respond by 5:00pm on 12 December 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.

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.”

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

The case of Caroline Rogers v Blue Care involved an application for an unfair dismissal remedy by Caroline Rogers, who was employed by Blue Care until her termination on 25 September 2023. Rogers applied for a remedy under section 394 of the Fair Work Act 2009 on 2 October 2023. However, the legal business name of the Respondent, Blue Care, was incorrectly identified as Uniting Church in Australia Property Trust (Q.) in the F3 – Employer’s Response Form. The Fair Work Commission sent correspondence to Rogers on 28 November 2023, advising her of the discrepancy and requiring a response by 6 December 2023. Further correspondence was sent to Rogers and her representative on 7 December 2023, advising them that the application would be dismissed without notice if no response was received by 5:00pm on 12 December 2023. As of the decision date, Rogers had not responded to any correspondence.

The legal issue before the Fair Work Commission was whether to dismiss the application for unfair dismissal under section 587 of the Fair Work Act 2009 for want of prosecution. The Act provides that the Commission may dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission also has the power to dismiss an application on its own initiative if it is frivolous or vexatious, or has no reasonable prospects of success. In this case, the Commission dismissed the application for want of prosecution, as Rogers had failed to respond to multiple correspondences from the Commission and her representative had not responded either. The Commission found that the application had no reasonable prospects of success, and therefore dismissed the application.

The Vice President of the Fair Work Commission, Catanzariti, decided to dismiss the application for want of prosecution under section 587(3)(a) of the Fair Work Act 2009. The Commission found that the application was not made in accordance with the Act due to the incorrect identification of the legal business name of the Respondent. The Commission also found that the application had no reasonable prospects of success, as Rogers had failed to respond to multiple correspondences from the Commission and her representative had not responded either. The decision to dismiss the application was made on the basis that the application was frivolous or vexatious, and had no reasonable prospects of success. The Vice President issued an order dismissing the application for want of prosecution.

This decision highlights the importance of ensuring that all legal requirements are met when making an application to the Fair Work Commission. Failure to do so can result in the application being dismissed, even if the application itself has merit. It is important for applicants to carefully read and follow all instructions and requirements set out in the Act, and to respond promptly to any correspondence from the Commission. In this case, the failure of Rogers and her representative to respond to multiple correspondences from the Commission ultimately led to the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established