Emma Boland v Foundever

[2024] FWC 777

[2024] FWC 777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emma Boland
v

Foundever

(U2024/468)

VICE PRESIDENT CATANZARITI SYDNEY, 4 APRIL 2024

Application for an unfair dismissal remedy

1. Emma Boland (the Applicant) was employed by Foundever (the Respondent) from 1 December 2020 until she was dismissed on 12 January 2024.

1. On 12 January 2024, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The legal business name nominated by the Respondent in their F3 – Employer’s Response Form in this matter was ‘Foundever Australia Pty Ltd.’ An unfair dismissal application should be lodged against the entity that employed the Applicant.

1. The Applicant also did not attend the scheduled conciliation on 20 February 2024.

1. On 22 February 2024, correspondence was sent to the Applicant regarding the name discrepancy and her non-attendance at the conciliation. The correspondence directed the Applicant to respond requesting to amend the application to name a different entity as her former employer or to provide submissions as to why the entity she had nominated was the correct entity. The Applicant was required to respond by 29 February 2024. No response was received at this time.
   
   

2. Further correspondence was sent to the Applicant on 5 March 2024, and she was required to respond by 5:00pm on 8 March 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received. No response was received at this time.

1. On 11 March 2024 the Commission attempted to contact the Applicant via telephone. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if she did not contact the Commission the application would be dismissed without further notice.

1. Later that day, the Respondent contacted my Chambers seeking an update on the matter. The Applicant was copied on the reply which informed the Respondent that the Applicant had until 18 March 2024 to respond. The email reiterated the warning to the Applicant that if she did not contact the Commission the application would be dismissed without further notice.

1. On 17 March 2024, the Applicant responded to an email from my Chambers stating she was uncomfortable attending a further listing with the Respondent and “[I] do not have time to attend any meeting. I will be following this matter up further when I am available again.”

1. On 18 March 2024, my Chambers acknowledged the Applicant’s email and informed her the matter could not be held indefinitely in abeyance. As such, a timeframe for when she would be ready to reengage with the matter was asked to be provided to Chambers by no later than 25 March 2024. No response was received from the Applicant.

1. On 26 March 2024, the Commission attempted to contact the Applicant via telephone again. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if she did not contact the Commission the application would be dismissed without further notice.

1. On 27 March 2024, the Respondent contacted my Chambers seeking an update on the dismissal of the matter. The Applicant was copied on the reply on 2 April 2024, which informed the Respondent that the Applicant had until 5:00pm 3 April 2024 to respond. The email reiterated the warning to the Applicant that if she did not contact the Commission the application would be dismissed without further notice.

1. To date, the Applicant has not provided a response to the legal business name discrepancy issue raised with her nor provided a timeframe that she was prepared to reengage with the Commission and proceed with her matter.

1. 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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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, “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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR772752>