Joy West v Sawtell Motor Inns Summary

[2023] FWC 2304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joy West
v

Sawtell Motor Inns

(U2023/5445)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Joy West (the applicant) began employment with Sawtell Motor Inns (the respondent) on the 20^th of June 2023 and was allegedly dismissed on the 13^th of June 2023.
On the 20^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 legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was MF & PA FARRELL.
On the 18^th of August 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 25^th of August 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 29^th of August 2023. She was required to respond to this correspondence by 5:00pm the 1^st of September 2023. It was in this correspondence that the applicant was advised her matter would be dismissed without further notice, should my chambers not receive a response.
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

In the matter of Joy West v Sawtell Motor Inns, the applicant, Joy West, applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009, claiming she was dismissed on 13th of June 2023. West began her employment with Sawtell Motor Inns on 20th of June 2023, and the respondent, Sawtell Motor Inns, was represented by MF & PA Farrell. On 20th of June 2023, West submitted her application for an unfair dismissal remedy. The Vice President, Catanzariti, was tasked with assessing the application and determining whether the dismissal was unfair.

The primary legal issue before the court was whether the application for unfair dismissal was to be dismissed for want of prosecution. This arose because West did not respond to multiple correspondences sent by the Vice President's chambers. The respondent, Sawtell Motor Inns, had raised a concern about the legal business name provided by West in her application, and further correspondence was sent to West requesting a response. However, West did not respond to either correspondence, leading to the potential dismissal of her application under section 587 of the Fair Work Act 2009.

The Vice President concluded that the application was to be dismissed for want of prosecution. The court found that the words "Without limiting when the FWC may dismiss an application" in section 587(1) of the Act, established that the Commission had jurisdiction to dismiss an application on various grounds. The Vice President exercised this jurisdiction and dismissed West's application under section 587(3)(a) of the Act. The court found that the application was not made in accordance with the Act due to West's failure to respond to correspondence. The court further found that the application had no reasonable prospects of success due to the lack of response from West.

The final orders of the court were that the application for unfair dismissal was to be dismissed for want of prosecution, and an order to that effect would issue with the decision. The dismissal was made under section 587(3)(a) of the Fair Work Act 2009.

Joy West v Sawtell Motor Inns

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established