Hanna Rosenthal v CatholicCare Summary

[2023] FWC 2055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Hanna Rosenthal
v

CatholicCare

(C2023/3908)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 AUGUST 2023

Application to deal with an unlawful termination dispute

Hanna Rosenthal (the applicant) was employed by CatholicCare (the respondent) and was allegedly terminated of her employment on the 21^st of July 2023.

On the 5^th of July 2022, the applicant made an application to deal with an unlawful termination dispute under section 773 of the Fair Work Act 2009 (the Act).

On the 25^th of July 2022, correspondence was sent to the applicant regarding the possibility that the respondent was a National System Employer and she was required to respond by the 1^st of August 2022. No response was received by the applicant at this time.
Further correspondence was sent on the 2^nd of August 2022 requiring the applicant to respond by 5:00pm on the 4^th of August 2022. It was at this point in time that the applicant was informed if no response was received, her application would be dismissed without further notice.
To date, the applicant has not responded to the jurisdictional issues, or any further correspondence sent by my Chambers in writing.

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 applicant, Hanna Rosenthal, has applied to the Fair Work Commission for a determination regarding an alleged unlawful termination of her employment by CatholicCare. The application was lodged under section 773 of the Fair Work Act 2009, which pertains to termination of employment. The applicant claims she was terminated on 21 July 2023. The Commission was required to determine if the application should be dismissed for failing to respond to jurisdictional queries and further correspondence.

The Commission was tasked with deciding if the application should be dismissed for lack of prosecution, considering the applicant's failure to respond to correspondence regarding the jurisdictional issues and her obligation to respond to correspondence sent by the Commission's Chambers. The specific legal issue was whether the applicant's failure to respond constituted sufficient grounds to dismiss the application under section 587 of the Act. The Commission had to consider whether the dismissal of the application would be appropriate under section 587(3)(a), which allows the Commission to dismiss an application on its own initiative.

The Commission concluded that the application should be dismissed for want of prosecution. The decision was based on the applicant's failure to respond to correspondence regarding the jurisdictional issues and subsequent notices from the Commission. The Commission determined that the dismissal was appropriate under section 587(3)(a) of the Act, as the application had not been pursued by the applicant despite multiple opportunities to do so. The Commission found that the dismissal was warranted and issued an order to that effect.

The Fair Work Commission ordered the dismissal of the application for want of prosecution. This decision was made under section 587(3)(a) of the Fair Work Act 2009, which allows the Commission to dismiss an application on its own initiative. The dismissal was due to the applicant's failure to respond to correspondence regarding jurisdictional issues and subsequent notices from the Commission's Chambers.

Hanna Rosenthal v CatholicCare

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established