Michelle McFarlane v ACR Supply Partners Pty Ltd

[2019] FWC 5968

[2019] FWC 5968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle McFarlane
v
ACR Supply Partners Pty Ltd
(U2019/8451)

VICE PRESIDENT CATANZARITI SYDNEY, 28 AUGUST 2019

Application for an unfair dismissal remedy.

[1] Michelle McFarlane was employed by ACR Supply Partners Pty Ltd (the Respondent). She says her employment ended on 27 June 2019.

[2] On 31 July 2019, Mrs McFarlane applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), 13 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 5 August 2019, the Respondent filed an Employer’s Response (Form F3) raising a jurisdictional objection on the basis that Mrs McFarlane’s application was made out of time.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent Mrs McFarlane correspondence on 13 August 2019, requiring her to provide a statement by 4:00 pm on 20 August 2019 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[5] On 22 August 2019, my chambers sent further correspondence to Mrs McFarlane, directing her to respond by 4:00 pm on 27 August 2019, and advising that if she did not respond, her application may be dismissed.

[6] To date, Mrs McFarlane has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

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

VICE PRESIDENT

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