Losalio Vakauta v Sisters of Our Lady of China T/A Pembroke Lodge

[2018] FWC 7049

[2018] FWC 7049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Losalio Vakauta
v
Sisters of Our Lady of China T/A Pembroke Lodge
(U2018/7641)

DEPUTY PRESIDENT DEAN SYDNEY, 20 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 24 July 2018, Ms Losalio Vakauta made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Vakauta’s application states she commenced employment with Sisters of Our Lady of China T/A Pembroke Lodge (Pembroke Lodge) on 20 May 2010 and that her dismissal took effect on 4 July 2018.

[3] The application was listed for telephone conciliation before a Fair Work Commission conciliator on 21 August 2018; however, the conciliation could not take place as Ms Vakauta was not contactable at that time. On 3 September 2018 the Commission received an email from Ms Vakauta which read:

“Im sorry that i was unavailable for my first conciliation on the 21/09/18 because i was book for work in my new job.

I still want another date for my conciliation if that's available.” 

[4] An email was sent to Ms Vakauta on 17 September 2018 requesting that she provide details of dates she would be available for the conciliation. Attempts were also made to contact Ms Vakauta by telephone. No response was received.

[5] On 9 October 2018 correspondence was sent to Ms Vakauta requesting her to contact my chambers by 16 October 2018 to advise whether or not she wished to proceed with her application.

[6] On 23 October 2018 further correspondence was sent to Ms Vakauta directing her to advise my chambers, by 4:00pm on 26 October 2018, whether she wished to proceed with her application. She was advised that in the absence of a reply her application may be dismissed.

[7] Final attempts were made to contact Ms Vakauta by telephone on 2 and 13 November 2018.

[8] To date, Ms Vakauta has not replied to any of the Commission’s correspondence.

[9] Section 587(1) 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.

[10] 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).

[11] In 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.

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

DEPUTY PRESIDENT

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