Luisa Santucci v Australian Professional Galvanizing Pty Ltd

[2020] FWC 2891

[2020] FWC 2891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luisa Santucci
v
Australian Professional Galvanizing Pty Ltd
(U2020/1603)

VICE PRESIDENT CATANZARITI SYDNEY, 5 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 13 February 2020, the Fair Work Commission (the Commission) received an application from Luisa Santucci for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with Australian Professional Galvanizing Pty Ltd (the respondent).

[2] On 24 February 2020, the respondent filed an Employer Response to Unfair Dismissal Application (Form F3), raising a jurisdictional objection on the basis that Miss Santucci’s application was lodged out of time. The parties agreed that Miss Santucci’s dismissal took effect on 22 January 2020.

[3] On 31 March 2020, my chambers sent Miss Santucci correspondence via Express Post about the extension of time issue. This correspondence was delivered on 2 April 2020. It directed her to provide a statement in support of obtaining an extension of time in which to validly lodge her application.

[4] On 9 April 2020, having not received a response, my chambers telephoned Miss Santucci, but left a voice mail message as there was no answer.

[5] On 14 April 2020, my chambers telephoned Miss Santucci again. Miss Santucci advised that she had not been living at the address to which the correspondence was sent for some time. She asked that it be resent to her post office box. This was done the same day, and her deadline was extended to 4:00 pm on 28 April 2020.

[6] At 1:00 pm on 28 April 2020, Miss Santucci emailed my chambers requesting a further two weeks in which to respond to my correspondence. The deadline was accordingly extended to 4:00 pm on 12 May 2020. Miss Santucci acknowledged her new deadline by return email that same day. However, we received no substantive response by the extended deadline.

[7] On 13 May 2020, my chambers sent further correspondence to Miss Santucci, directing her to respond by 4:00 pm on 18 May 2020, and advising that if she did not respond, her application may be dismissed.

[8] To date, Miss Santucci has not responded substantively to the Commission’s correspondence first sent on 31 March 2020.

[9] 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.”

[10] 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).

[11] In the circumstances, 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.

VICE PRESIDENT

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