Kristy Hartup v Lake Macquarie Private Hospital Summary

[2023] FWC 1301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kristy Hartup
v

Lake Macquarie Private Hospital

(U2023/3052)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 JUNE 2023

Application for an unfair dismissal remedy.

Kristy Hartup (the applicant) was employed by Lake Macquarie Private Hospital (the respondent) from the 29^th of May 2015 until she was dismissed on the 5^th of April 2023.

On the 11^th of April 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 Ramsay Health Care Australia Pty Limited.
On the 18^th of May 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 25^th of May 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 26^th of May 2023 and she was required to respond by the 31^st of May 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, her application would be dismissed without any further notice.
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

Kristy Hartup was employed by Lake Macquarie Private Hospital from May 2015 until she was dismissed in April 2023. On April 11, 2023, she applied for a remedy for unfair dismissal under the Fair Work Act 2009. The hospital was initially listed as Ramsay Health Care Australia Pty Limited, which was pointed out to Hartup on April 18, 2023, and she was required to respond by May 25, 2023. No response was received, and further correspondence was sent on May 26, 2023, with a deadline of May 31, 2023, at 5:00pm for a response. Hartup did not respond to either correspondence, and her application was dismissed without further notice.

The legal issues before the court included whether the application was made in accordance with the Act, whether it was frivolous or vexatious, and whether it had reasonable prospects of success. Section 587 of the Act provided the basis for dismissing the application for want of prosecution. The court noted that the words “Without limiting when FWC may dismiss an application” in section 587(1) of the Act established that the Commission's jurisdiction to dismiss an application was not limited to the circumstances set out in section 587(1)(a), (b) and (c). The court also noted that despite paragraphs (1)(b) and (c), the FWC must not dismiss an application on the ground that it is frivolous or vexatious or has no reasonable prospects of success.

The court decided to dismiss the application for want of prosecution pursuant to section 587(3)(a) of the Act. The court found that Hartup had failed to respond to the correspondence sent to her, and as such, her application was dismissed without further notice. The court noted that the jurisdiction of the Commission to dismiss an application was not limited to the circumstances set out in section 587(1)(a), (b) and (c) of the Act. An order to that effect will issue with this decision.

In conclusion, the court dismissed Hartup's application for unfair dismissal remedy for want of prosecution. The court found that Hartup had failed to respond to the correspondence sent to her, and as such, her application was dismissed without further notice. The court noted that the jurisdiction of the Commission to dismiss an application was not limited to the circumstances set out in section 587(1)(a), (b) and (c) of the Act.

Kristy Hartup v Lake Macquarie Private Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established