Katy Cao v Present Company Pty Ltd

[2024] FWC 34

[2024] FWC 34

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Katy Cao
v

Present Company Pty Ltd

(U2023/10778)

VICE PRESIDENT CATANZARITI SYDNEY, 5 JANUARY 2024

Application for an unfair dismissal remedy

1. Katy Cao (the Applicant) was employed by Present Company Pty Ltd (the Respondent) from 27 July 2022 until she was dismissed on 25 October 2023.

1. On 3 November 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
   
   

2. On 28 November 2023 the Applicant did not attend conciliation as listed by the Commission.

1. On 11 December 2023, correspondence was sent to the Applicant in relation to her lack of attendance at conciliation and she was required to respond by 5:00pm on 19 December 2023. No response was received at this time.
   
   

2. Further correspondence was sent to the Applicant on 20 December 2023, and she was required to respond by 5:00pm on 2 January 2024. It was in this correspondence that the Applicant was advised her application would be dismissed without any notice if no response was received.
   
   

3. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. 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).

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

1. 
   An order to that effect will issue with this decision.

VICE PRESIDENT

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