Cassandra Chang v The Trustee for Benitab Family Trust

[2023] FWC 741

[2023] FWC 741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Cassandra Chang
v

The Trustee For Benitab Family Trust

(C2023/83)

COMMISSIONER MIRABELLA MELBOURNE, 28 MARCH 2023

Application to deal with contraventions involving dismissal.

1. Ms Cassandra Chang (the applicant) was employed by The Trustee For Benitab Family Trust (the respondent) from 27 June 2022 until she was dismissed on 16 December 2022.

1. On 7 January 2023, the applicant made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (the Act).

1. The application was lodged 1 day out of time.

1. I listed the matter for a Mention/Conference on 17 March 2023 and both the applicant and respondent attended in person. That same day, I issued directions for the filing and service of material regarding the extension of time application. The applicant was required to file and serve an outline of submissions and evidence by no later than 4:00pm on 24 March 2023. My Chambers did not receive any correspondence from the applicant by the deadline. My Chambers sent an email to the applicant on 26 March 2023 directing that the applicant provide by 5:00pm on 27 March 2023 an explanation for her non-compliance. On the afternoon of 27 March 2023, my Chambers left the applicant a voicemail reminding her of the 5:00pm deadline. However, no response was received from the applicant by the deadline and a further email was sent to the applicant by my Chambers extending the deadline for providing an explanation for the delay to 28 March 2023 at 4:00pm.  Ms Chang was advised in both the 26 March 2023 and 28 March 2023 emails from my Chambers that the application may be dismissed without further advice to her if no explanation for the non-compliance is provided. 

1. To date, the applicant has not filed her submissions in accordance with my directions of 17 March 2023 and has not responded to the 26 March 2023 or 28 March 2023 emails from 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.

(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.”

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.

COMMISSIONER

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