Megan Calcagno v Department of Veterans Affairs

[2021] FWC 2010

[2021] FWC 2010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Calcagno
v
Department of Veterans Affairs
(U2021/1524)

VICE PRESIDENT CATANZARITI SYDNEY, 14 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 23 February 2021, Megan Calcagno (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against ‘Department of Veterans Affairs’.

[2] On 4 March 2021, Commonwealth of Australia as represented by the Department of Veterans Affairs T/A Department of Veterans Affairs - Australia (the respondent) filed a response objecting to the application on the basis the applicant was not employed by them.

[3] On 25 March 2021, my chambers sent correspondence to the applicant requesting submissions to be provided by 4:00pm on 1 April 2021 outlining the reasons why she believed she was employed by the respondent. We did not receive a response from the applicant pertaining to the objection raised by the respondent by that time.

[4] On 7 April 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 12 April 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, we have not received a response from the applicant regarding the respondent’s objection.

[6] 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.”

[7] 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).

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

VICE PRESIDENT

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