Lauren Hurst v Infinite Care

[2021] FWC 1136

[2021] FWC 1136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lauren Hurst
v
Infinite Care
(U2020/16407)

VICE PRESIDENT CATANZARITI SYDNEY, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 22 December 2020, Lauren Hurst made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to her employment with ‘Infinite Care’. Miss Hurst says she was employed by Infinite Care from 4 June 2019 until her dismissal on 2 December 2020.

[2] On 12 January 2021, Affiliate Aged Care Pty Ltd (the respondent) filed an Employers Response (form F3) objecting to Miss Hurst’s application on the following grounds:

•  the application was lodged out of time;

•  Miss Hurst did not meet the minimum employment period;

•  Miss Hurst was a casual employee who was not regularly and systemically employed and had no reasonable expectation of continuing employment; and

•  Miss Hurst was not dismissed.

[3] On 16 February 2021, my chambers sent correspondence to Miss Hurst requiring her to provide a statement to support her claim that she had served the minimum employment period and were employed on a regular and systemic basis and she did have a reasonable expectation of ongoing employment. The correspondence also requested Miss Hurst to provide a statement in support of granting of an extension of time for the late lodgement of her application. She was asked to provide her statements by no later than 23 February 2021. No response was received from the applicant by that date.

[4] On 24 February 2021, further correspondence was sent to Miss Hurst directing her to provide a response by 4.00pm on 1 March 2021. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Miss Hurst has not responded to any of the Commission’s correspondence.

[6] 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.

[7] 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).

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

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

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