Jasmin Williams v Nanango Ampol Summary

[2023] FWC 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jasmin Williams
v

Nanango Ampol

(U2023/4904)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JUNE 2023

Application for an unfair dismissal remedy.

Jasmin Williams (the applicant) was employed by Nanango Ampol (the respondent), and she was allegedly dismissed on the 4^th of May 2023.

On the 5^th of June 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 11 days out of time.
On the 8^th of June 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 June 2023.
On the 14^th of June 2023, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 16^th of June 2023. She was advised 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

The Fair Work Commission considered the case of Jasmin Williams against Nanango Ampol. Ms Williams, the applicant, alleged she was unfairly dismissed by Nanango Ampol, the respondent, on 4 May 2023. Ms Williams lodged an application for a remedy under s.394 of the Fair Work Act 2009 on 5 June 2023, which was 11 days out of the statutory time limit. The Commission sent correspondence to Ms Williams on 8 June 2023, requiring her to respond by 13 June 2023. Further correspondence was sent on 14 June 2023, directing her to respond by 5:00pm on 16 June 2023, with a warning that failure to reply would result in her application being dismissed. Ms Williams did not respond to any of the correspondence.

The primary legal issue before the Commission was whether Ms Williams' application for a remedy for unfair dismissal could be dismissed for want of prosecution, considering it was lodged outside the statutory time limit and she failed to respond to correspondence from the Commission. Section 587 of the Act allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission noted that the words “without limiting when the FWC may dismiss an application” in s.587(1) of the Act establish that the Commission's jurisdiction to dismiss an application is not restricted to the circumstances set out in s.587(1)(a), (b) and (c).

In light of Ms Williams' failure to respond to correspondence from the Commission and the late lodging of her application, the Commission decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. The Commission held that the application was not made in accordance with the Act and had no reasonable prospects of success. Consequently, the Commission dismissed Ms Williams' application for a remedy for unfair dismissal.

The Fair Work Commission issued an order dismissing Ms Williams' application for a remedy for unfair dismissal. The order stated that the application was dismissed for want of prosecution, in accordance with s.587(3)(a) of the Act. The Commission noted that the application was not made in accordance with the Act and had no reasonable prospects of success. The order further clarified that the dismissal was not based on the application being frivolous or vexatious, as s.587(2) of the Act provides that the Commission must not dismiss an application on those grounds if it is made under s.365 or 773.

Jasmin Williams v Nanango Ampol

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established