Miss Maddisyn Fox v

[2022] FWC 2898

[2022] FWC 2898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Miss Maddisyn Fox
v

Sarah Self

(U2022/8507)

COMMISSIONER YILMAZ MELBOURNE, 28 OCTOBER 2022

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative.

1. On 19 August 2022, Miss Maddisyn Fox (the Applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleged she was unfairly dismissed by Sarah Self (the Respondent) on 14 August 2022.

1. Ms Fox states in her Form F2 Unfair Dismissal Application that she commenced employment with the Respondent on 31 January 2022, that her dismissal took effect on 14 August 2022 and that the Respondent engages fewer than 14 employees. On the grounds that Ms Fox had not met the minimum employment period, the Respondent objected to the application, advising that it meets the definition of a small business employer in its Form F3 Employer Response. The employer response also corroborated the date of commencement and termination date specified in Ms Fox’s Form F2.

1. The matter was listed for conciliation before a staff conciliator on 14 October 2022.

1. On 14 October Ms Fox could not be reached by the staff conciliator. The conciliator made two attempts to reach Ms Fox by telephone and voicemails were left requesting that she contact the Commission in order to proceed. The conciliator also emailed Ms Fox requesting that she urgently contact the Commission. A final attempt to reach Ms Fox was made and another voicemail was left. The conciliation conference ultimately could not take place because the Applicant did not respond to telephone calls, voice messages or emails.

1. The application was subsequently allocated to me, and my chambers issued a notice of listing to the parties on 24 October 2022 for a Mention/Directions hearing listed for 27 October 2022. My chambers then attempted to telephone Ms Fox and a voicemail was left requesting that Ms Fox confirm her attendance at the Mention/Direction hearing.

1. On 25 October 2022 my chambers again left a voice message with Ms Fox and on 26 October 2022, an SMS message was sent to Ms Fox’s nominated telephone number.

1. At Mention/Directions hearing on 27 October 2022, the Applicant did not appear. A telephone call to Ms Fox went unanswered and a voicemail message was left seeking an immediate response. My chambers then emailed Ms Fox requesting that she contact the Commission and advise whether she wishes to proceed with her application no later than noon 28 October 2022. Ms Fox was put on notice that absent a response by this time, her application for an unfair dismissal remedy would be dismissed pursuant to s.587 of the Act.

The Legislation

1. Section 587 of the Act provides as follows:

“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.”

Consideration and Conclusion

1. At the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).

1. I have decided to dismiss the Application for the reason that numerous attempts have been made to engage with the Applicant and no response to date has been received by my chambers. I am satisfied that through those attempts to contact her, the Applicant was on notice of the risk that failure to contact the Commission her matter may be dismissed. I further note that the Applicant herself specifies a length of service below the minimum employment period and identified the Respondent as a small business employer in her Form F2. Given the Applicant’s disengagement with the process and failure to challenge the Respondent’s jurisdictional objection, I consider that the matter should be dismissed on the basis that it has no reasonable prospect of success.

1. On this basis, the application is dismissed for want of prosecution pursuant to s.587(1)(c) of the Act.

1. An order[1] to that effect will be issued with this decision.

COMMISSIONER

[1] PR747424.

Printed by authority of the Commonwealth Government Printer

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