Michelle Simpson v McCourtie, Christine Claire

[2021] FWC 656

[2021] FWC 656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Simpson
v
McCourtie, Christine Claire
(U2020/15233)

VICE PRESIDENT CATANZARITI SYDNEY, 10 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] Michelle Simpson filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) on 25 November 2020 with the Fair Work Commission (the Commission) with respect to her employment with ‘McCourtie, Christine Claire’. Ms Simpson stated she was employed by ‘McCourtie, Christine Claire’ from 18 November 2019 until her dismissal which took effect on 4 November 2020.

[2] On 17 December 2020, Claire’s Cottage Pty Ltd (the respondent) filed a Form F3 Employer’s Response objecting to Ms Simpson’s application on two grounds: Ms Simpson was not dismissed and had voluntarily resigned from her employment and the application was brought against the incorrect employer entity. The respondent said Ms Simpson was previously employed with ‘Christine Claire McCourtie’ as a sole trader from 22 November 2019 until a transfer of employment to Claire’s Cottage Pty Ltd on 27 February 2020.

[3] The matter was referred to me to determine the jurisdictional objections. My chambers sent correspondence to Ms Simpson on 25 January 2021 to initially deal with the incorrect employer entity objection. Ms Simpson was required to provide a statement to support her claim that she was employed by ‘Christine Claire McCourtie’ by 1 February 2021. We did not receive a response from Ms Simpson by that time.

[4] On 2 February 2021, my chambers sent further correspondence to Ms Simpson directing her to provide a response by 4:00pm on 5 February 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, Ms Simpson has not responded to any of the Commission’s correspondence.

[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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