Danielle Doyle v Caltex Australia Pty Ltd

[2019] FWC 4922

[2019] FWC 4922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danielle Doyle
v
Caltex Australia Pty Ltd
(U2019/2104)

COMMISSIONER YILMAZ MELBOURNE, 16 JULY 2019

Application for an unfair dismissal remedy.

[1] On 27 February 2019, Ms Danielle Doyle (the Applicant) filed an application with the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Respondent to the application is Caltex Australia Pty Ltd (the Respondent).

[2] The matter was listed for an extension of time hearing on 31 May 2019, however, was unable to proceed due to the unavailability of the Applicant. Correspondence was sent to the Applicant requesting an explanation for her absence for the hearing by close of business 5 June 2019. The Applicant was informed that once we receive a response, the Commission would determine how the application should proceed.

[3] The Applicant was also contacted by telephone and phone messages were left.

[4] A further email was sent to the Applicant on 7 June 2019, seeking a response by no later than 4:00pm 11 June 2019.

[5] The Applicant has not responded to telephone calls, phone messages or written correspondence.

[6] On 20 June 2019, correspondence was sent to the parties advising that I may consider dismissing the application in accordance with s.587 of the Act, due to non-compliance.

[7] The Applicant was directed to file with the Commission and serve on the Respondent submissions, evidence or any documentary material the Applicant seeks to rely on, outlining why the Commission should not dismiss the application. The Applicant was given until 4:00pm 27 June 2019 to file materials.

[8] No response was received from the Applicant by the due date.

Consideration

[9] Section 587 of the Act sets out how the Commission may dismiss an application. It 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), 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”

[10] In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in s.587(1)(a) to (c). The opening words ‘without limiting when the FWC may dismiss a matter’ clearly confer a broader discretion. 1

[11] The lack of response from the Applicant leads me to conclude that she longer intends to pursue her application. I have therefore decided to dismiss Ms Doyle’s application for an unfair dismissal remedy pursuant to s.587 of the Act for want of prosecution. An order to this effect will be issued separately to this decision.

COMMISSIONER

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 1   Kennedy v Complete Solutions Pty Ltd[2013] FWC 2777 at [7].