Deborah Ayres v Fire Service Employment Pty Ltd Summary

[2023] FWC 142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Deborah Ayres
v

Fire Service Employment Pty Ltd

(U2019/5306)

COMMISSIONER BISSETT

MELBOURNE, 19 JANUARY 2023

Application for an unfair dismissal remedy

On 10 May 2019 Ms Deborah Ayres (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging she was unfairly dismissed by Fire Service Employment Pty Ltd (the Respondent).

On 25 June 2019 the Commission was made aware that the Respondent had entered external administration. On 14 August 2019 a Decision[1] was issued staying the matter until leave of a Court was granted.

On 6 January 2023 the Commission sent correspondence to Ms Ayres’ nominated email address advising her that her matter is at risk of being dismissed as it is apparent she does not intend to seek the leave of the Court. Ms Ayres was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Ms Ayres.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Ms Ayres, I am satisfied that Ms Ayres’ application has no reasonable prospects of success.

As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

[1] [2019] FWC 5636

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Deborah Ayres lodged a claim for unfair dismissal against her former employer, Fire Service Employment Pty Ltd, under section 394 of the Fair Work Act 2009. The matter was referred to the Fair Work Commission, which subsequently found that the respondent had entered external administration. The Commission issued a decision to stay the proceedings pending the grant of leave from the Court. Despite multiple opportunities to do so, Ms Ayres did not seek leave of the Court, and the Commission was unable to contact her regarding the status of the claim. The Commission was left with no option but to dismiss the application on the basis that it had no reasonable prospects of success.

The central issue before the Commission was whether Ms Ayres' application for unfair dismissal could be dismissed under section 587(1)(c) of the Fair Work Act, which allows the Commission to dismiss an application if it has no reasonable prospects of success. The Commission considered whether Ms Ayres' failure to seek leave of the Court rendered her application futile, and whether it was in the interests of justice to proceed with the matter in the absence of the Court's leave. The Commission concluded that the application had no reasonable prospects of success, and that it was therefore appropriate to dismiss it under section 587(1)(c).

The Commission found that Ms Ayres' failure to seek leave of the Court rendered her application futile, as it was unlikely that the Court would grant leave to proceed in the absence of Ms Ayres' participation. The Commission was unable to contact Ms Ayres to ascertain whether she intended to seek leave of the Court, and her failure to respond to correspondence from the Commission suggested that she did not intend to do so. The Commission concluded that, in the absence of any indication that Ms Ayres intended to seek leave of the Court, her application had no reasonable prospects of success. The Commission therefore dismissed the application under section 587(1)(c) of the Fair Work Act.

The Commission ordered that Ms Ayres' application for unfair dismissal be dismissed under section 587(1)(c) of the Fair Work Act. The dismissal was made on the basis that the application had no reasonable prospects of success, as Ms Ayres had failed to seek leave of the Court to proceed with the matter. The Commission was unable to contact Ms Ayres to ascertain whether she intended to seek leave of the Court, and her failure to respond to correspondence from the Commission suggested that she did not intend to do so. The Commission considered that it was in the interests of justice to dismiss the application, as it was unlikely that the Court would grant leave to proceed in the absence of Ms Ayres' participation.

Deborah Ayres v Fire Service Employment Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established