Erin Bryan v RedlandBay Coffee Pty Ltd T/A the Coffee Club Redland Bay Drive Thru

[2020] FWC 5866

[2020] FWC 5866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erin Bryan
v
RedlandBay Coffee Pty Ltd T/A The Coffee Club Redland Bay Drive Thru
(U2020/12355)

VICE PRESIDENT CATANZARITI SYDNEY, 3 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Erin Bryan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) on 15 September 2020. Miss Bryan says she was employed by “RedlandBay Coffee Pty Ltd T/A The Coffee Club Redland Bay Drive Thru” from July 2018 until she was dismissed on 15 September 2020.

[2] On 23 September 2020, Redybay Coffee Pty Ltd T/A The Coffee Club Redland Bay filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Miss Bryan did not serve the minimum employment period.

[3] My chambers sent correspondence to Miss Bryan on 19 October 2020 requiring her to provide a statement to support her claim that she had served the minimum employment period. She was asked to provide the information by no later than 4:00pm on 26 October 2020. No response was received from Miss Bryan.

[4] On 27 October 2020, further correspondence was sent to Miss Bryan directing her to provide a response by 4.00pm on 30 October 2020. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Miss Bryan has not responded to any of the Commission’s correspondence.

[6] 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.

[7] 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).

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

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

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