Janelle Hamilton v Kathryn Madison

[2020] FWC 4326

[2020] FWC 4326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janelle Hamilton
v
Kathryn Madison
(U2020/9794)

VICE PRESIDENT CATANZARITI SYDNEY, 18 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 16 July 2020, the Fair Work Commission (the Commission) received an application from Janelle Hamilton for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with Kathryn Madison.

[2] Ms Hamilton said her dismissal took effect on 23 June 2020. Accordingly, it appeared Ms Hamilton had lodged her application more than 21 days after her dismissal took effect.

[3] On 27 July 2020, my chambers sent Ms Hamilton correspondence about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00 pm on 30 July 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 31 July 2020, my chambers sent further correspondence to Ms Hamilton, directing her to respond by 4:00 pm on 4 August 2020, and advising that if she did not respond, her application may be dismissed.

[5] To date, Ms Hamilton has not responded to any of the Commission’s correspondence.

[6] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout 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).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

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