Liberty Smith v Bailey Pozzobon

[2024] FWC 521

[2024] FWC 521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Liberty Smith
v

Bailey Pozzobon

(U2023/9935)

DEPUTY PRESIDENT LAKE BRISBANE, 4 MARCH 2024

Application for an unfair dismissal remedy – failure to prosecute claim – s.587 – application dismissed.

1. On 11 October 2023, Liberty Smith (the Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal by Bailey Pozzobon (the Respondent) under s.394 of the Fair Work Act 2009 (the Act).

1. The Applicant does not provide a date regarding the commencement of her employment. The Applicant claims she was dismissed on 24 September 2023.

1. A conciliation was listed on 16 November 2023 to a staff conciliator. The conciliation did not take place as the Applicant did not attend. The Applicant was phoned on 3 occasions.

1. A conciliation was then listed on 19 December 2023 to another staff conciliator. The conciliation did not occur as the Applicant and the Respondent did not answer their phone.

1. The Applicant was sent a No-Show letter on 29 January 2024, and this was followed up on 6 February 2024. The Applicant had responded on 6 February 2024 that they ‘wanted to continue the case’.

1. The matter was then allocated to me. The matter was listed for conference on 21 February 2024. The conference did not take place as the Applicant did not attend. The Applicant was phoned on 2 occasions.

1. My chambers sent an email on 21 February 2024 noting that the application may be dismissed if submissions were not received by 23 February 2024 as the Applicant was not pressing her application.

1. The Applicant was issued with correspondence on 27 February 2024, requiring her to file written material in support of her application by 29 February 2024.

1. No correspondence has been received from the Applicant to this date.

1. 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, or an application under s527F that does not consist solely of an application for a stop sexual harassment order 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.”

1. The words, “Without limiting when FWC may dismiss an application” at the beginning 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).

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

DEPUTY PRESIDENT

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