Danielle George v The Trustee for the Salvation Army (NSW) Social Work Summary

[2023] FWC 1659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danielle George
v

The Trustee For The Salvation Army (NSW) Social Work

(U2023/5185)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JULY 2023

Application for an unfair dismissal remedy.

Danielle George (the applicant) was employed by The Trustee For The Salvation Army (NSW) Social Work (the respondent), and she was allegedly dismissed on the 15^th of May 2023.

On the 12^th of June 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 7 days out of time.
On the 27^th of June 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 30^th of June 2023.
On the 3^rd of July 2023, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 5^th of July 2023. She was advised in this correspondence that in the absence of a reply, her application may be dismissed.
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

Danielle George sought a remedy for unfair dismissal against The Trustee for the Salvation Army (NSW) Social Work, after being allegedly dismissed on 15 May 2023. The applicant lodged her application under s.394 of the Fair Work Act 2009 on 12 June 2023, which was 7 days beyond the time limit. The Commission sent correspondence to the applicant on 27 June 2023, directing her to respond by 30 June 2023. Further correspondence was sent on 3 July 2023, directing the applicant to provide a response by 5:00pm on 5 July 2023, and advising that in the absence of a reply, her application may be dismissed. The applicant did not respond to any of the correspondence sent by the Commission.

The legal issue before the Commission was whether the applicant's application for unfair dismissal could be dismissed for want of prosecution under s.587 of the Fair Work Act 2009. The relevant provision provides that the Commission may dismiss an application if it is not made in accordance with the Act, if it is frivolous or vexatious, or if it has no reasonable prospects of success. The Commission found that the applicant's application was lodged out of time and that she had failed to respond to correspondence sent by the Commission. The Commission held that the application could be dismissed for want of prosecution.

The Commission dismissed the applicant's application for unfair dismissal for want of prosecution pursuant to s.587(3)(a) of the Fair Work Act 2009. The Commission found that the applicant had failed to respond to correspondence sent by the Commission, and that her application was lodged out of time. The Commission held that the application could be dismissed on the ground that it was not made in accordance with the Act, and that the dismissal was appropriate in the circumstances. An order to that effect will issue with this decision.

Danielle George v The Trustee for the Salvation Army (NSW) Social Work

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established