Kira Alfe v Gerald Holdings Pty Ltd

[2022] FWC 3002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kira Alfe
v

Gerald Holdings Pty Ltd

(U2022/6672)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 NOVEMBER 2022

Application for an unfair dismissal remedy.

Kira Alfe (the applicant) was employed by Gerald Holdings Pty Ltd (the respondent) from the 1^st of September 2021 until she was dismissed on the 12^th of May 2022.

On the 27^th of June 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

According to the respondent’s F3 – Employer’s Response Form, the application was lodged 25 days out of time.
On the 3^rd of November 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 8^th of November 2022.
On the 9^th of November 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 10^th of November 2022. She was advised that in the absence of a reply, her 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

In the Fair Work Commission, Kira Alfe, the applicant, brought a claim against Gerald Holdings Pty Ltd, the respondent, under section 394 of the Fair Work Act 2009, alleging unfair dismissal. Alfe was employed by the respondent from 1 September 2021 until her dismissal on 12 May 2022. The application for remedy was lodged on 27 June 2022, which the respondent indicated was 25 days outside the allowable time frame. The Commission subsequently sent multiple communications to Alfe, requesting a response to the late filing and threatening dismissal of the application if no response was forthcoming. Despite these communications, Alfe did not respond, leading to the Commission's decision to dismiss the application.

The primary legal issue before the Commission was whether the application could be dismissed for want of prosecution due to the applicant's failure to respond to the respondent's objections and the Commission's subsequent communications. This hinged on the interpretation of section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative. The Commission considered whether the applicant's inaction constituted a sufficient ground for dismissal under this section, and if the dismissal was appropriate given the procedural requirements of the Act.

The Commission found that the applicant's failure to respond to multiple communications from the Commission warranted the dismissal of the application for want of prosecution. The Commission noted that section 587(1) of the Act explicitly states that the Commission's jurisdiction to dismiss an application is not limited to the specific circumstances outlined in subsections (a), (b), and (c). This broad language suggested that the Commission had the authority to dismiss an application on its own initiative when the applicant fails to prosecute the matter as required. Given Alfe's lack of response, the Commission decided to exercise this authority, leading to the dismissal of the application.

The Commission ordered that the application be dismissed for want of prosecution in accordance with section 587(3)(a) of the Fair Work Act 2009. This decision was made based on the applicant's failure to respond to multiple communications from the Commission, which highlighted the procedural shortcomings of the application. An order to this effect was issued alongside the decision.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established