Leeanne Archer v Just Jeans Group Pty Ltd

[2019] FWC 6256

[2019] FWC 6256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leeanne Archer
v
Just Jeans Group Pty Ltd
(U2019/7293)

VICE PRESIDENT CATANZARITI SYDNEY, 9 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] Leeanne Archer was employed by Just Jeans Group Pty Ltd (the Respondent). Ms Archer stated that her dismissal took effect on 12 June 2019. The Respondent says that it dismissed Ms Archer with effect from 11 June 2019.

[2] On 3 July 2019, Ms Archer applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 16 July 2019, the Respondent filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Ms Archer’s application was lodged out of time.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent Ms Archer correspondence on 26 August 2019. It noted that if the Respondent were correct about the date her dismissal took effect, then she had lodged her application one day outside the 21-day period prescribed by s.394(2) of the Act, and directed her to provide a statement by 4:00 pm on 2 September 2019 either in support of obtaining an extension of time in which to validly lodge her application, or explaining why she did not believe she required an extension of time. However, no response was received.

[5] On 3 September 2019, my chambers sent further correspondence to Ms Archer, directing her to respond by 4:00 pm on 6 September 2019, and advising that if she did not respond, her application may be dismissed.

[6] To date, Ms Archer has not responded to any of the Commission’s correspondence.

[7] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] The words, “[w]ithout 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).

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

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

VICE PRESIDENT

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