Deborah Wade v J.A.C.E Transport Pty Ltd

[2024] FWC 1575

[2024] FWC 1575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Deborah Wade
v

J.A.C.E. Transport Pty Ltd

(U2024/4270)

COMMISSIONER P RYAN SYDNEY, 17 JUNE 2024

Application for an unfair dismissal remedy

1. On 13 April 2024, Ms Deborah Wade (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

1. By the Application, the Applicant alleges she was unfairly dismissed from her employment with J.A.C.E Transport Pty Ltd (Respondent). The Application did not identify a date of dismissal.

1. On 30 April 2024, the Applicant lodged an amended Application in which the Applicant stated the date the dismissal took effect was 19 March 2024.

1. Based on that date, the Application was made more than 21 days after the dismissal took effect. The matter was subsequently allocated to my Chambers to determine whether the Fair Work Commission (Commission) will allow a further period for the Application to be made.

1. I listed the matter for hearing on 25 June 2024 and issued directions requiring the parties to file materials ahead of the hearing. The Applicant was required to file materials in support of an extension of time by 3 June 2024. The Applicant did not file any materials.

1. On 6 June 2024, I instructed my associate to send correspondence to the Applicant enquiring whether she wished to proceed with the Application.

1. On 7 June 2024, the Applicant confirmed that she wanted to pursue the Application.

1. Later that day, I issued amended directions requiring the Applicant to file any materials in support of an extension of time by 11 June 2024. The Applicant did not file any materials in accordance with these directions.

1. On 14 June 2024, I instructed my associate to send correspondence to the Applicant seeking an explanation for her failure to comply with directions of the Commission. The Applicant was directed to file her explanation by 12:00pm on 17 June 2024. The Applicant did not provide any explanation or response.

Legislative Provisions

1. 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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

1. Taking into consideration the Applicant’s failure to comply with directions and her failure to provide any response or explanation for that non-compliance, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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