Gladys Wardah Egango v Intertek Pty Ltd

[2023] FWC 1466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gladys Wardah Egango
v

Intertek Pty Ltd

(U2023/2046)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JUNE 2023

Application for an unfair dismissal remedy.

Gladys Wardah Egango (the applicant) began employment with Intertek Pty Ltd (the respondent) on the 19^th of April 2022 and was allegedly dismissed on the 27^th of February 2023.

On the 13^th of March 2023, 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 Intertek Management Services (Australia) Pty Ltd.
On the 30^th of May 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 6^th of June 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 7^th of June 2023 and she was required to respond by the 12^th of June 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, her application would be dismissed without any further notice.
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

The Fair Work Commission was asked to decide on an unfair dismissal claim brought by Gladys Wardah Egango against Intertek Pty Ltd. Ms Egango, who started working for the respondent on April 19, 2022, alleged that she was dismissed on February 27, 2023. She lodged an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. However, the respondent pointed out a discrepancy in the name provided on the employer's response form, which was Intertek Management Services (Australia) Pty Ltd. The Commission sent two letters to Ms Egango to address this discrepancy, but she did not respond in time.

The main legal issue the Commission needed to resolve was whether to dismiss the applicant's claim for want of prosecution due to her failure to respond to correspondence regarding the discrepancy in the employer's name. The Commission considered whether it had the authority to dismiss the application under section 587(3)(a) of the Fair Work Act 2009. It noted that the words "without limiting when the FWC may dismiss an application" in section 587(1) of the Act meant that the Commission's power to dismiss an application was not restricted to the specific circumstances outlined in section 587(1)(a), (b), and (c). Given that the applicant did not respond to correspondence sent by the Commission, the Vice President decided to dismiss the application for want of prosecution.

In light of the decision to dismiss the application, the Commission issued an order to that effect. The Commission's decision highlights the importance of accurately providing information in an application and the consequences of failing to respond to correspondence from the Commission in a timely manner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established