Dawn Lawrence v Northern Rivers Community Gateway

[2023] FWC 2305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dawn Lawrence
v

Northern Rivers Community Gateway

(U2023/6175)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Dawn Lawrence (the applicant) began employment with Northern Rivers Community Gateway (the respondent) on the 29^th of June 2022 and was allegedly dismissed on the 15^th of June 2023.
On the 7^th of July 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 Northern Rivers Community Gateway Incorporated.
On the 18^th of August 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 25^th of August 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 29^th of August 2023. She was required to respond to this correspondence by 5:00pm the 1^st of September 2023. It was in this correspondence that the applicant was advised her matter would be dismissed without further notice, should my chambers not receive a response.
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.

(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

Dawn Lawrence, the applicant, filed a claim for unfair dismissal against Northern Rivers Community Gateway, the respondent, under section 394 of the Fair Work Act 2009. Lawrence began her employment with the respondent on 29 June 2022 and claims to have been dismissed on 15 June 2023. The application was lodged on 7 July 2023. The respondent, Northern Rivers Community Gateway Incorporated, was identified in the F3 – Employer’s Response Form. On 18 August 2023, the applicant received correspondence regarding a discrepancy in the respondent’s legal business name and was asked to respond by 25 August 2023. No response was received. Further correspondence on 29 August 2023 required a response by 5:00pm on 1 September 2023, with a warning that failure to respond would result in dismissal of the application. To date, the applicant has not responded to any correspondence.

The central legal issue was whether the application should be dismissed for want of prosecution under section 587 of the Fair Work Act 2009. Section 587(1) of the Act allows the Fair Work Commission (FWC) to 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. However, section 587(2) provides exceptions for certain applications that cannot be dismissed on the grounds of being frivolous, vexatious, or having no reasonable prospects of success. Section 587(3) further allows the FWC to dismiss an application either on its own initiative or on application. In this case, the Vice President decided to dismiss the application for want of prosecution under section 587(3)(a).

The Vice President considered the applicant’s failure to respond to multiple communications regarding the discrepancy in the respondent’s legal business name, despite being given specific deadlines to do so. Given the clear warnings that non-response would result in dismissal, and the applicant’s continued silence, the Vice President concluded that the application should be dismissed for want of prosecution. An order dismissing the application was issued with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established