Katrina Griffiths v Motivated Services Pty Ltd

[2022] FWC 2544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Katrina Griffiths
v

Motivated Services Pty Ltd

(U2022/8741)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 SEPTEMBER 2022

Application for an unfair dismissal remedy.

Katrina Griffiths (the applicant) was employed by Motivated Services Pty Ltd (the respondent) from the 28^th of May 2021 until she was dismissed on the 14^th of July 2022.

On the 26^th of August 2022, 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 22 days out of time.
On the 6^th of September 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 9^th of September 2022.
On the 12^th of September 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 13^th of September 2022. She was advised that in the absence of a reply their application may be dismissed.

To date, 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

Katrina Griffiths, an employee, filed an application for unfair dismissal against her former employer, Motivated Services Pty Ltd, under the Fair Work Act 2009. The applicant was employed by the respondent from May 2021 until her dismissal on July 14, 2022. The application for unfair dismissal was lodged on August 26, 2022, 22 days outside the statutory time limit. Despite subsequent correspondences and deadlines set by the Commission, the applicant did not respond to any of these communications. This case required the Fair Work Commission to determine whether the application could be dismissed for being lodged outside the time limit and for lack of prosecution. The Commission found that the application was not only lodged outside the permissible time but also failed to be prosecuted as the applicant did not respond to any correspondences regarding the matter. The Commission concluded that the application could be dismissed for want of prosecution under section 587(3)(a) of the Fair Work Act 2009.

The legal issues at hand involved whether the Commission had the jurisdiction to dismiss the application under section 587 of the Act, particularly in light of the applicant’s failure to respond to multiple communications. The key legal question was whether the statutory time limit for lodging an unfair dismissal application was a jurisdictional requirement and whether the Commission could dismiss the application for want of prosecution due to the applicant's failure to respond to the Commission's correspondences. The applicant argued that the dismissal application, despite being lodged late, should still be considered due to her previous correspondence with the Commission. However, the Commission held that the statutory time limit was a jurisdictional requirement and that the failure to respond to the Commission's correspondences justified dismissing the application for want of prosecution.

The Fair Work Commission, after examining the statutory provisions and the circumstances of the case, determined that the application could indeed be dismissed for want of prosecution. The Commission noted that section 587(1) of the Act provided that the Commission could dismiss an application without limitation to the circumstances specified in subsections (a), (b), and (c). This broad jurisdictional provision allowed the Commission to dismiss the application not only for being lodged outside the time limit but also for the applicant's failure to prosecute the matter. Given that the applicant had not responded to any correspondences sent by the Commission, it was clear that the application was not being pursued. Therefore, the application was dismissed for want of prosecution under section 587(3)(a) of the Act.

An order will be issued in accordance with this decision, dismissing the unfair dismissal application for want of prosecution. This order will reflect the Fair Work Commission's determination that the application was not only lodged outside the statutory time limit but also failed to be prosecuted due to the applicant's inaction in responding to the Commission's correspondences.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established