Harmony Rose Lockerby v City of Fremantle

[2022] FWC 1070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harmony Rose Lockerby
v

City of Fremantle

(U2022/3515)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

Harmony Rose Lockerby was employed by City of Fremantle from the 2^nd of November 2015 through to the 21^st of February 2022.

On the 24^th of March 2022, Harmony Rose Lockerby made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 10 days out of time.
On the 1^st of April 2022, correspondence was sent to the applicant addressing the issue that her application was lodged outside of the 21 day timeframe. Harmony Rose Lockerby was given until 5:00pm on Wednesday the 6th of April to respond to this correspondence.
In response to this correspondence, the Applicant requested an extra 2 weeks to submit a response this material and was therefore given until 5:00pm Tuesday the 19^th of April to reply above mentioned correspondence. No response was given by this time.
On the 20^th of April 2022, further correspondence was sent to Harmony Rose Lockerby directing her to provide a response by 5:00pm on Friday the 22^nd of April 2022. It was in this correspondence that she was advised that in the absence of a reply, her application may be dismissed.

To date, Harmony Rose Lockerby has not responded to her matter being lodged out of time.

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 case of Harmony Rose Lockerby v City of Fremantle involved an application for unfair dismissal remedy made by Harmony Rose Lockerby against her former employer, the City of Fremantle. The application, lodged under section 394 of the Fair Work Act 2009, was dismissed by the Fair Work Commission on the basis that it was not made within the requisite 21-day timeframe. Despite multiple opportunities to respond to the out-of-time nature of the application, Lockerby failed to provide a response, leading to the dismissal of her application. The case was overseen by Vice President Catanzariti, who found that the Commission's jurisdiction to dismiss an application was not limited to the specific circumstances outlined in section 587(1) of the Act.

The primary legal issue in this case was whether the Commission had the authority to dismiss an application that was lodged outside the specified timeframe, and if so, under what provisions of the Act this could be justified. The applicant argued that despite the delay, her application should still be considered on its merits. The respondent, on the other hand, contended that the application should be dismissed for being out of time and without reasonable prospects of success. The Court needed to determine whether the dismissal of the application for being out of time was permissible under the Act, and if the Commission had the discretion to dismiss the application on its own initiative.

The Vice President found that section 587(1) of the Act provided the Commission with broad discretion to dismiss applications, including those that were not made within the required timeframe. The phrase "without limiting when the FWC may dismiss an application" indicated that the circumstances under which the Commission could dismiss an application were not restricted to the specific scenarios listed in section 587(1)(a), (b), and (c). Therefore, the Vice President concluded that the application could be dismissed for want of prosecution under section 587(3)(a) of the Act, as Lockerby had failed to respond to the Commission's correspondence regarding the out-of-time application. The Court decided to dismiss the application and an order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established