Kathy Lee Beattie Beattie v Be: Associated Summary

[2022] FWC 1066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kathy Lee Beattie Beattie
v

BE: Associated

(U2022/500)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

On the 7^th of January 2022, Kathy Lee Beattie Beattie lodged an Unfair Dismissal Claim under s.394 of the Fair Work Act 2009.
A conciliation before a Commission staff conciliator was listed for this matter on the 4^th of March 2022, however the conciliation did not take place because the applicant did not attend.
My chambers sent correspondence to Kathy Lee Beattie Beattie on the 1^st of April 2022, directing her to advise the Fair Work Commission whether she wishes to continue her application. However, we received no response from the applicant.

On the 11^th of April 2022, my chambers sent further correspondence to the applicant, directing her to provide a response by 5:00pm on the 14^th of April. It was at this point in time, she was notified that in the case we do not receive a response to this correspondence, the matter may be dismissed without any further notice.
To date, Kathy Lee Beattie Beattie has not responded to any of the Commission’s correspondence.

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, “[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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kathy Lee Beattie Beattie filed a claim for unfair dismissal against BE: Associated, under section 394 of the Fair Work Act 2009, on 7 January 2022. The claim was not proceeded with as the applicant failed to attend the conciliation meeting scheduled for 4 March 2022. Despite multiple correspondences from the Fair Work Commission, the applicant did not respond to any of the requests to either continue or withdraw the claim. As a result, the Commission was required to decide on the appropriate action to take under section 587 of the Act.

The central issue for the Commission was whether the application should be dismissed for want of prosecution. The relevant section of the Act provides that the Fair Work Commission has the power to dismiss an application if it is not made in accordance with the Act, if it is frivolous or vexatious, or if it has no reasonable prospects of success. The Commission was required to determine whether the lack of response from the applicant justified the dismissal of the claim.

In reaching its decision, the Commission noted that the words "without limiting when the FWC may dismiss an application" in section 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 section 587(1)(a), (b), and (c). The Commission found that the applicant's failure to respond to multiple correspondences indicated that the application had no reasonable prospects of success. As such, the application was dismissed for want of prosecution under section 587(3)(a) of the Act.

The Fair Work Commission dismissed the unfair dismissal application for want of prosecution. The Commission found that the applicant's failure to respond to multiple correspondences indicated that the application had no reasonable prospects of success. The dismissal was made under section 587(3)(a) of the Fair Work Act 2009.

Kathy Lee Beattie Beattie v Be: Associated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established