Daniella Whyte v Cerebral Palsy Alliance

[2023] FWC 2744

[2023] FWC 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Daniella Whyte
v

Cerebral Palsy Alliance

(U2023/8610)

VICE PRESIDENT CATANZARITI SYDNEY, 20 OCTOBER 2023

Application for an unfair dismissal remedy

1. Ms Daniella Whyte (Applicant) was employed by Cerebral Palsy Alliance (Respondent).

1. On 9 September 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 2 days outside the 21 day period prescribed by s.394(2) of the Act.

1. On 25 September 2023, the Respondent filed its response form raising a jurisdictional objection on the basis that the Applicant’s application was made out of time.

1. Correspondence was sent to the Applicant on 14 September 2023 requiring her to provide a statement in support of the granting of an extension of time for the late lodgement of her application. She was asked to provide the information by no later than 5pm on 19 September 2023. No response was received from the Applicant. 

1. On 20 September 2023, further correspondence was sent to the Applicant directing her to provide a response by 5pm on 22 September 2023. She was advised that in the absence of a reply her application may be dismissed.

1. To date, the Applicant has not responded to any of the Commission’s correspondence.

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.

VICE PRESIDENT

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