Janet Peni v Advanced Traffic Management (WA) Pty Ltd T/A ATM Group Summary

[2023] FWC 3284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Janet Peni
v

Advanced Traffic Management (WA) Pty Ltd T/A ATM Group

(U2023/6886)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 DECEMBER 2023

Application for an unfair dismissal remedy

Janet Peni (the Applicant) was employed by Advanced Traffic Management (WA) Pty Ltd T/A ATM Group (the Respondent) from 4 September 2022 until she was dismissed on 10 July 2023.

On 27 July 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

On 29 August 2023 and again on 17 September 2023, the Respondent advised by email that the company is in liquidation.

On 18 September 2023, the Respondent sent a further email and supporting documents that provided the name of the liquidator as David Hodgson, from Grant Thornton.

The Liquidator, David Hodgson consented to participate in the conciliation and provided his contact details for it by email on 18 September 2023.

A conciliation before a Fair Work Commission conciliator was listed to take place on 20 September 2023. A number of calls were made to the Applicant. The Applicant did not attend the conciliation and there was no contact received from the Applicant.

On 22 November 2023, correspondence was sent from my Chambers to the Applicant in relation to the jurisdictional issue mentioned above and she was required to respond by 29 November 2023. No response was received at this time.

Further correspondence was sent to the Applicant on 30 November 2023 and she was required to respond by 5:00pm on 6 December 2023. It was in this correspondence that the Applicant was advised her application would be dismissed without any notice if no response was received.

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.

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.”

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

Janet Peni filed an application for unfair dismissal against Advanced Traffic Management (WA) Pty Ltd T/A ATM Group, which she alleged dismissed her from her employment on 10 July 2023. The Respondent, ATM Group, subsequently advised the Commission that it was in liquidation, with David Hodgson from Grant Thornton appointed as the liquidator. The liquidator agreed to participate in the conciliation process. Despite multiple attempts to contact the Applicant, she did not attend the scheduled conciliation and failed to respond to correspondence from the Commission's office. The Vice President of the Fair Work Commission, Catanzariti, decided to dismiss the application due to the Applicant's lack of response and prosecution of the case.

The primary legal issue in this case was whether the Commission had jurisdiction to hear the Applicant's unfair dismissal claim given that the Respondent was in liquidation. Additionally, the Commission considered whether the Applicant had pursued her application with due diligence, given her failure to respond to correspondence or attend the scheduled conciliation. Section 587 of the Fair Work Act 2009 provided the legal basis for the Commission's decision to dismiss the application.

The Vice President found that the Commission's jurisdiction to hear the application was not limited to the specific circumstances outlined in Section 587(1)(a), (b), and (c) of the Act. The Vice President also noted that the Applicant had failed to respond to multiple communications and had not attended the scheduled conciliation. Given these circumstances, the Vice President dismissed the application for want of prosecution under Section 587(3)(a) of the Act. The Vice President concluded that the dismissal was appropriate as the Applicant had not demonstrated the necessary diligence in pursuing her claim.

The Fair Work Commission issued an order dismissing Janet Peni's application for unfair dismissal against Advanced Traffic Management (WA) Pty Ltd T/A ATM Group for want of prosecution. This decision was based on the Applicant's failure to respond to correspondence and attend the conciliation, as well as the Respondent's status as a company in liquidation. The dismissal reflects the importance of pursuing claims diligently and the Commission's authority to manage its caseload effectively.

Janet Peni v Advanced Traffic Management (WA) Pty Ltd T/A ATM Group

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established