Leah Rise v iiWorks T/A SEOWorks

[2017] FWC 4798

[2017] FWC 4798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leah Rise
v
iiWorks T/A SEOWorks
(U2017/2569)

DEPUTY PRESIDENT DEAN SYDNEY, 14 SEPTEMBER 2017

Application for an unfair dismissal remedy – dismissed for want of prosecution

[1] On 9 March 2017, Ms Leah Rise made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Rise’s application states that she commenced employment with iiWorks T/A SEOWorks (iiWorks) on 5 November 2012 and that her dismissal took effect on 9 February 2017.

[3] At the time of her alleged dismissal, she had been performing work for iiWorks from her residence in Florida, USA for almost two years.

[4] iiWorks objected to the application on a number of grounds including that Ms Rise was not a national system employee, and so the matter was listed for hearing on 14 September 2017 to hear the jurisdictional objection. The date was set as it was a mutually agreeable date to both parties and Ms Rise had indicated that she would be in Australia at that time.

[5] On 6 September 2017, an amended Notice of Listing was sent to the parties bringing forward the time of the hearing by one hour. My associate received an ‘email undeliverable’ notice for iiWorks. My associate then attempted to make contact with the CEO of iiWorks via the mobile number and office numbers provided. Both telephone numbers had been disconnected. An ASIC search was then conducted, which showed the status of iiWorks as at 5 June 2017 as ‘External Administration’.

[6] On 7 September 2017, correspondence was sent to Ms Rise advising her of the results of the ASIC search and the inability to contact iiWorks by email or telephone. She was asked to confirm her intentions in relation to her application in these circumstances by 4pm Friday 8 September 2017.

[7] Ms Rise responded shortly after, acknowledging that she knew that iiWorks had been shut down, and asked if we could provide advice to her. My Chambers confirmed via return email that we were unable to provide ‘advice’, however given her application raised various issues with regard to unpaid superannuation, indicated that she may wish to contact the Australian Tax Office in this regard. Ms Rise was again asked to confirm her intentions in relation to her unfair dismissal application by email.

[8] No further correspondence was received. On 11 September 2017, Ms Rise was again asked to advise her intentions no later than 4pm Tuesday 12 September 2017.

[9] Again, no correspondence was received from Ms Rise. A final email was sent to Ms Rise on Wednesday 13 September 2017, asking her to advise my Chambers of her intentions no later than 4pm that day. No response was received.

[10] The jurisdictional Hearing was listed at 9.00am on Thursday 14 September 2017. By 9.15am there had been no appearance on behalf of either party.

[11] Section 587 of the Act is in the following terms:

“587 Dismissing applications

(1) Without limiting when FWC may dismiss an application, 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.”

[12] 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 Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] Ms Rise did not provide any advice as to her intentions in response to the emails sent by the Commission, and did not attend the hearing. Given she resides in the USA and is aware her former employer is no longer operating, I consider it likely that she has decided it would be futile to continue with her application.

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

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

DEPUTY PRESIDENT

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