Claire Archibald v A.S Campbell & A.R Stent

[2024] FWC 1020

[2024] FWC 1020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Claire Archibald
v

A.S Campbell & A.R Stent

(U2024/1090)

DEPUTY PRESIDENT EASTON SYDNEY, 19 APRIL 2024

Application for an unfair dismissal remedy

1. Ms Claire Archibald was employed by A.S Campbell & A.R Stent until she was dismissed on 29 January 2024. On 1 February 2024, Ms Archibald filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A conciliation conference was scheduled on 7 March 2024 however Ms Archibald did not attend.

1. The Respondent also raised the jurisdictional objection in their Form F3 that they are not a National System Employer as they were a partnership operating in Western Australia and the Applicant was not employed under any Award.

1. On 15 March 2024, correspondence was sent to Ms Archibald in relation to the legal identity of her ex-employer and her failure to attend the scheduled conciliation. Ms Archibold was required to respond by 22 March 2024 but did not do so.
   
   

2. Further correspondence was sent to Ms Archibald on 27 March 2024, asking her to respond by 5:00pm on 3 April 2024. Ms Archibald was advised that her application may be dismissed without further notice if she did not respond.

1. Ms Archibald responded to that correspondence, indicating that she had not received the earlier email. My Chambers resent the earlier correspondence on the same day however Ms Archibald again did not respond.

1. On 5 April 2024 the Commission attempted to contact Ms Archibald via telephone however Ms Archibald could not be reached. A voicemail message was left asking Ms Archibald to respond to the correspondence as soon as possible. The voicemail message also warned that if she did not contact the Commission her application would be dismissed without further notice. Ms Archibald did not respond.

1. Final correspondence was sent to Ms Archibald on 15 April 2024, asking her to respond by 5:00pm on 17 April 2024. Ms Archibald was advised that her application would be dismissed without further notice if she did not respond.

1. To date, Ms Archibald has not provided a response to the substantive issue raised with her.

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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

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 Ms Archibald’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR773649).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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