Danah Hage-Ali v Clear Skincare

[2023] FWC 3129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danah Hage-Ali
v

Clear Skincare

(U2023/7652)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 NOVEMBER 2023

Application for an unfair dismissal remedy

Danah Hage-Ali (the Applicant) was employed by Clear Skincare (the Respondent) from 2 July 2019 until she was dismissed on 10 August 2023.

On 16 August 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 Clear Skincare Clinics Payroll Pty Ltd.

On 27 September 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and she was required to respond by 4 October 2023. No response was received at this time.

Further correspondence was sent to the Applicant on 21 November 2023 and she was required to respond by 5:00pm on 24 November 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

In the matter of Danah Hage-Ali v Clear Skincare, the applicant, Danah Hage-Ali, sought an unfair dismissal remedy against her former employer, Clear Skincare. The dismissal occurred on 10 August 2023, following her employment from 2 July 2019. On 16 August 2023, the applicant lodged an application for a remedy under section 394 of the Fair Work Act 2009. The respondent, Clear Skincare Clinics Payroll Pty Ltd, was identified as the legal entity in the employer’s response form. The Fair Work Commission, presided over by Vice President Catanzariti, was tasked with determining the application.

The primary legal issue before the Commission was whether the application for an unfair dismissal remedy should proceed or be dismissed for want of prosecution. The Commission needed to consider the procedural requirements of the Fair Work Act 2009, specifically section 587, which outlines the circumstances under which an application may be dismissed. The Commission also had to assess the applicant’s responses to correspondence sent by the Commission’s chambers, particularly regarding jurisdictional issues and the requirement for the applicant to respond by specified deadlines.

After evaluating the applicant’s failure to respond to correspondence and the statutory provisions, the Commission determined that the application should be dismissed for want of prosecution. This decision was based on the applicant's non-compliance with the procedural requirements set out in section 587(1) of the Act. The Commission found that the application did not meet the necessary criteria for progression and that the lack of response to correspondence indicated that the application had no reasonable prospects of success. Consequently, the application was dismissed without further notice, pursuant to section 587(3)(a) of the Act.

An order will be issued to reflect the dismissal of the application for unfair dismissal due to the applicant's failure to prosecute the matter.

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