Christie Baxter v Thales Group Australia

[2023] FWC 83

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christie Baxter
v

Thales Group Australia

(U2022/11703)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 JANUARY 2023

Application for an unfair dismissal remedy.

Christie Baxter (the applicant) was employed by Thales Group Australia (the respondent) from the 13^th of October 2019 until she was dismissed on the 17^th of November 2022.

On the 9^th of December 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

According to the applicant’s F2 – Unfair Dismissal Form, the application was lodged 1 day out of time.
On the 15^th of December 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 20^th of December 2022.
On the 21^st of December 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 23^rd of December 2022. She was advised that in the absence of a reply, her application may be dismissed.

To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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

Christie Baxter, the applicant, filed an application for an unfair dismissal remedy against Thales Group Australia, the respondent, under section 394 of the Fair Work Act 2009. Baxter was employed by Thales Group Australia from 13 October 2019 until her dismissal on 17 November 2022. Baxter lodged her application for unfair dismissal on 9 December 2022, one day out of the statutory time limit. The Commission issued correspondence to Baxter on 15 December 2022, requiring her to respond by 20 December 2022. Further correspondence was sent on 21 December 2022, directing Baxter to respond by 5:00pm on 23 December 2022, with the warning that failure to do so may result in the dismissal of her application. Baxter has not responded to either correspondence.

The legal issue for determination by the Commission was whether the application should be dismissed for want of prosecution. The Commission had to determine whether the application could be dismissed under section 587(3)(a) of the Act. Section 587(1) of the Act provides that the Commission may dismiss an application if it is not made in accordance with the Act, or if it is frivolous or vexatious, or if it has no reasonable prospects of success. The Commission must not dismiss an application under section 365 or 773 on the ground that it is frivolous or vexatious, or has no reasonable prospects of success. The Commission may dismiss an application on its own initiative or on application. The words “Without limiting when the 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). The Commission dismissed the application for want of prosecution under s.587(3)(a) of the Act. An order to that effect will issue with this decision.

In summary, the Commission dismissed the applicant’s unfair dismissal application for want of prosecution. The application was lodged one day outside the statutory time limit, and the applicant failed to respond to correspondence from the Commission. The Commission found that it had the jurisdiction to dismiss the application for want of prosecution, and dismissed the application accordingly. An order will issue dismissing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established