Emily Peak v Bhp Group Limited Summary

[2022] FWC 2798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emily Peak
v

Bhp Group Limited

(U2022/8381)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 OCTOBER 2022

Application for an unfair dismissal remedy.

Emily Peak (the applicant) was employed by Bhp Group Limited (the respondent) from the 27^th of January 2021 until she was dismissed on the 11^th of August 2022.

On the 16^th of August 2022, 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 Mt Arthur Coal Pty Ltd.
On the 19^th of September 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 26^th of September 2022. No response was received at this time.
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

In the matter of Emily Peak versus Bhp Group Limited, the Fair Work Commission was tasked with hearing an application for a remedy for unfair dismissal. Emily Peak was employed by Bhp Group Limited from January 27, 2021, until her dismissal on August 11, 2022. Following her dismissal, Peak applied for a remedy under section 394 of the Fair Work Act 2009, asserting that her termination was unfair. The respondent, Bhp Group Limited, was represented by Mt Arthur Coal Pty Ltd in this matter. Peak has failed to respond to correspondence from the Commission regarding a discrepancy in the legal business name provided by the respondent.

The central legal issue for the Commission to decide was whether the application for a remedy for unfair dismissal should be dismissed for want of prosecution. This decision hinged on the interpretation of section 587 of the Fair Work Act 2009, which outlines the circumstances under which the Commission may dismiss an application. The Commission had to determine whether Peak's failure to respond to correspondence and address the legal business name discrepancy rendered her application frivolous, vexatious, or lacking reasonable prospects of success. Additionally, the Commission considered whether the dismissal of the application was permissible under section 587(3)(a), allowing the Commission to act on its own initiative.

The Commission found that the application was not made in accordance with the Act due to Peak's non-response to correspondence and the unresolved discrepancy in the legal business name provided by the respondent. Under section 587(1)(a) of the Act, the Commission has the jurisdiction to dismiss an application if it is not made in accordance with the Act. Given the lack of response from Peak, the Commission decided to dismiss the application for want of prosecution. This decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if the application does not comply with the Act.

In light of the above, the Commission ordered the dismissal of Emily Peak's application for a remedy for unfair dismissal. This decision was made on the basis that the application was not made in accordance with the Fair Work Act 2009, and Peak had failed to respond to correspondence from the Commission. The Commission's decision was consistent with the provisions of section 587 of the Act, which provide the jurisdictional basis for dismissing applications that do not comply with the Act. An order to this effect was issued alongside the decision.

Emily Peak v Bhp Group Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established