Irene Cryer v Australia Zoo Operations ATF the Irwin (Beerwah) Group Trading Trust

[2022] FWC 2122

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Irene Cryer
v

Australia Zoo Operations ATF The Irwin (Beerwah) Group Trading Trust

(U2022/6279)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 AUGUST 2022

Application for an unfair dismissal remedy.

Irene Cryer (the applicant) was employed by Australia Zoo Operations ATF The Irwin (Beerwah) Group Trading Trust (the respondent) from the 1^st of June 2016 until she was dismissed on the 12^th of June 2022.

On the 14^th of June 2022, 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 Australia Zoo Operations Pty Ltd ATF The Irwin (Beerwah) Group Trading Trust.
On the 20^th of July 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 27^th of July 2022. No response was received at this time.
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

Irene Cryer filed an unfair dismissal claim against Australia Zoo Operations ATF The Irwin (Beerwah) Group Trading Trust, which operates as Australia Zoo. Cryer, who had been employed by the respondent from June 2016 until her dismissal in June 2022, sought a remedy under the Fair Work Act 2009. The respondent identified itself as Australia Zoo Operations Pty Ltd ATF The Irwin (Beerwah) Group Trading Trust in its response form. Cryer did not respond to correspondence regarding this discrepancy, leading to the application's dismissal.

The court had to decide whether to dismiss the application for want of prosecution due to the applicant's failure to respond to the discrepancy in the respondent's legal business name. The court noted that section 587 of the Act allows the dismissal of applications that are not made in accordance with the Act, are frivolous or vexatious, or lack reasonable prospects of success. The court considered that the applicant's failure to respond to correspondence about the discrepancy in the respondent's legal business name indicated a lack of prosecution.

The court dismissed the application for want of prosecution under section 587(3)(a) of the Act, on its own initiative. The court determined that Cryer's failure to respond to correspondence regarding the discrepancy in the respondent's legal business name constituted a lack of prosecution. The court concluded that the application should be dismissed because it did not comply with the Act, and Cryer had not responded to correspondence from the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established