Kristie Hewat v The Trustee for Nurcha Trust No 1

[2023] FWC 2190

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kristie Hewat
v

The Trustee For Nurcha Trust No 1

(U2023/4028)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 AUGUST 2023

Application for an unfair dismissal remedy.

Kristie Hewat (the applicant) began employment with The Trustee For Nurcha Trust No 1 (the respondent) on the 28^th of October 2018 and was allegedly dismissed on the 26^th of April 2023.
On the 10^th of May 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 Nurcha Shared Services Pty Ltd.
On the 20^th of June 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 27^th of June 2023. No response was received at this time.
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

The applicant, Kristie Hewat, filed an application for an unfair dismissal remedy against The Trustee For Nurcha Trust No 1, which was later identified under the legal business name of Nurcha Shared Services Pty Ltd. The applicant commenced employment on 28 October 2018 and was allegedly dismissed on 26 April 2023. On 10 May 2023, Hewat lodged an application under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent was subsequently notified of a discrepancy regarding the legal business name in their F3 – Employer’s Response Form, requiring a response by 27 June 2023. No response was received, and to date, the applicant has not responded to any correspondence from the Commission.

The primary legal issue before the Commission was whether to dismiss the application for want of prosecution under s.587(3)(a) of the Act. This section allows the Fair Work Commission to dismiss an application if it has not been prosecuted in accordance with the Act or if the application is frivolous or vexatious, or has no reasonable prospects of success. The Commission noted that Hewat had not responded to any correspondence or provided any information to rectify the legal business name discrepancy, leading to concerns about the viability of the application.

The Vice President, Catanzariti, considered the provisions of s.587(1) and (3) of the Act and concluded that the application could be dismissed for want of prosecution. The words “without limiting when the FWC may dismiss an application” in s.587(1) of the Act indicate that the Commission's jurisdiction to dismiss an application is not confined to the specific circumstances outlined in s.587(1)(a), (b), and (c). The Vice President determined that it was appropriate to dismiss the application on its own initiative due to the applicant's failure to respond to the Commission's correspondence and address the legal business name discrepancy.

The final orders of the Commission were to dismiss the application for want of prosecution under s.587(3)(a) of the Fair Work Act 2009. An order to this effect was issued with the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established