Holley Jeanne v Australian in Home Care Specialists Summary

[2023] FWC 2026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Holley Jeanne
v

Australian In Home Care Specialists

(U2023/5915)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 AUGUST 2023

Application for an unfair dismissal remedy.

Holley Jeanne (the applicant) was employed by Australian In Home Care Specialists (the respondent), and she was allegedly dismissed on the 6^th of June 2023.

On the 2^nd of July 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The application was lodged 5 days out of time.
On the 10^th of July 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 13^th of July 2023. No response was received at this time.
On the 14^th of July 2023, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 18^th of July 2023. She was advised in this correspondence that in the absence of a reply, her application may be dismissed.
The applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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

In the case Holley Jeanne v Australian In Home Care Specialists, the applicant, Holley Jeanne, sought a remedy for an alleged unfair dismissal under section 394 of the Fair Work Act 2009. The respondent, Australian In Home Care Specialists, was Jeanne's employer. Jeanne filed her application for a remedy on 2 July 2023, which was five days beyond the statutory time limit. Despite multiple opportunities to respond to notices from the Commission regarding the late filing, Jeanne did not provide any response. Consequently, the Vice President of the Fair Work Commission, Catanzariti, was tasked with determining whether the application should be dismissed for being lodged out of time and for want of prosecution.

The key legal issues before the Commission were whether the application was made within the statutory time limit and whether it should be dismissed for being out of time and for want of prosecution. The Commission considered whether section 587 of the Fair Work Act provided a basis for dismissing the application. Section 587(1) of the Act permits the dismissal of an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Furthermore, section 587(3) of the Act allows the Commission to dismiss an application on its own initiative if it meets any of the criteria set out in section 587(1).

The Commission found that the application was not made in accordance with the Act due to its late filing and the absence of any response to notices regarding the late filing. The Commission further concluded that dismissing the application for want of prosecution was appropriate given the circumstances. The Commission noted that section 587(1) of the Act establishes that the jurisdiction of the Commission to dismiss an application is not limited to the specific circumstances listed in that section. Therefore, the application was dismissed for being lodged out of time and for want of prosecution.

In light of the above, the Fair Work Commission issued an order dismissing the application for unfair dismissal. This order reflects the Commission's determination that the application did not comply with the statutory requirements and was not pursued as required. The dismissal of the application for want of prosecution signifies the Commission's authority to manage its caseload effectively and ensure that applications are timely and properly prosecuted.

Holley Jeanne v Australian in Home Care Specialists

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established