Fiona Macri v AAA Hospitality Pty Ltd

[2024] FWC 65

[2024] FWC 65

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Fiona Macri
v

AAA Hospitality Pty Ltd

(U2023/11052)

VICE PRESIDENT CATANZARITI SYDNEY, 10 JANUARY 2024

Application for an unfair dismissal remedy

1. Fiona Macri (the Applicant) was employed by AAA Hospitality Pty Ltd (the Respondent) from 23 November 2018 until the Applicant was dismissed on 21 October 2023.

1. On 10 November 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent raised an objection in the F3 – Employer’s Response Form stating that the application is out of time.

1. A conciliation was scheduled for 5 December 2023 at 11.15 am at which the Applicant did not join the online conciliation.  The conciliator wrote to the parties that same day to advise that if parties want this matter to proceed to conciliation to email their request within 2 working days.  No response was received.

1. A further letter was sent on 11 December 2023 by the conciliator who advised that the application is now referred to a Commission member for conference/hearing.

1. On 13 December 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and the no show at conciliation.  The Applicant was required to respond by 19 December 2023. No response was received at this time.

1. Further correspondence was sent to the Applicant on 5 January 2024 and the Applicant was required to respond by 5:00pm on 9 January 2024. It was in this correspondence that the Applicant was advised her application would be dismissed without any notice if no response was received.

1. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

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

<PR770104>