Lynda Owens v Nutworks

[2024] FWC 21

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lynda Owens
v

Nutworks

(U2023/11825)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 JANUARY 2024

Application for an unfair dismissal remedy

Lynda Owens (the Applicant) was employed by Nutworks (the Respondent) from 22 June 2022 until she was dismissed on 17 October 2023.

On 30 November 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged 23 days out of time.

On 11 December 2023, correspondence was sent to the Applicant in relation to the matter being lodged out of time and she was required to respond by 15 December 2023.

Further correspondence was sent to the Applicant on 20 December 2023 and she was required to respond by 5:00pm on 2 January 2024. It was in this correspondence that the Applicant was advised her application would be dismissed without any notice if no response was received.

To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

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.”

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lynda Owens, the applicant, sought a remedy for unfair dismissal against Nutworks, the respondent, following her dismissal from employment on 17 October 2023. Owens had been employed by Nutworks since 22 June 2022. On 30 November 2023, Owens lodged an application for unfair dismissal under section 394 of the Fair Work Act 2009. However, the application was lodged 23 days after the statutory time limit, rendering it late. Following this, the Commission sent correspondence to Owens advising her of the late lodgement and requesting a response by 15 December 2023. Further correspondence was then sent on 20 December 2023, requiring a response by 5:00pm on 2 January 2024, and warning that failure to respond would result in the application being dismissed without notice. Owens has not responded to any of the correspondence. The Commission found that the application was to be dismissed for want of prosecution under section 587(3)(a) of the Act, as it was not made in accordance with the Act due to its late lodgement.

The legal issue before the Commission was whether it had the jurisdiction to dismiss Owens' application for unfair dismissal for want of prosecution. Section 587(1) of the Act grants the Fair Work Commission the jurisdiction to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Section 587(3)(a) of the Act further provides that the Commission may dismiss an application on its own initiative. The Commission found that it had jurisdiction to dismiss the application under section 587(3)(a) of the Act as it was not made in accordance with the Act. The Commission also found that the application was late and that Owens had failed to respond to correspondence advising her of this and requiring a response.

In dismissing the application, the Commission noted that the statutory time limit for lodging an unfair dismissal application was a mandatory jurisdictional requirement. The Commission found that the late lodgement of the application deprived it of jurisdiction to hear the matter. The Commission also found that the failure of Owens to respond to correspondence advising her of the late lodgement and requiring a response indicated a lack of diligence in prosecuting the application. The Commission concluded that the application should be dismissed for want of prosecution. An order to that effect will issue with this decision.

Owens' application for an unfair dismissal remedy is dismissed for want of prosecution. An order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established