Miss Megan Fry v Just Better Care Brisbane South

[2014] FWC 1745

[2014] FWC 1745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Megan Fry
v
Just Better Care Brisbane South
(U2013/13248)

DEPUTY PRESIDENT ASBURY BRISBANE, 14 MARCH 2014

Application for unfair dismissal remedy - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged in Brisbane on 5 September 2013. The application was made by Ms Megan Fry (the Applicant) and the respondent employer is Just Better Care Brisbane South (the Respondent).

[2] The application was made outside the time required in s.394(2) of the Act.

[3] A conciliation conference was convened on 24 October 2013 but was unsuccessful in settling the matter. The application was then referred to me to hear the jurisdictional objection.

[4] The matter was listed for a Mention/Directions Conference on 20 December 2013. Directions were issued to the parties directing the Applicant to file material in relation to why the time for making the application should be extended by 31 January 2014, and the Respondent was directed to file material in reply by 28 February 2014.

[5] On 29 January 2014, an email was received from Ms Connors, a Team Leader at Open Minds requesting an extension of time in which to file material on behalf of the Applicant. Amended Directions were emailed to the parties requiring the Applicant to file material by 14 February 2014, and the Respondent by 14 March 2014.

[6] On 26 February 2014 correspondence was sent to the Applicant requesting a written response by 7 March 2014 indicating whether she sought to proceed with her application. The correspondence also advised the Applicant that “Should you fail to respond by the due date, the matter will be decided on the basis of the material contained on the file and your application may be dismissed”.

[7] No response has been received from the Applicant. The correspondence has been directed to the postal address provided by the Applicant on her application.

[8] The Fair Work Commission may dismiss an application pursuant to s.587 of the Act. That section is in the following terms:

“587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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.

(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:

(a) on its own initiative; or
(b) on application.”

[9] No application has been made by the Respondent in this matter for the application to be dismissed. In all of the circumstances I am satisfied that the power for the Commission to dismiss the application upon the grounds in s.587(1)(c) is triggered and that it should be exercised. The application for an unfair dismissal remedy lodged by Ms Megan Michelle Fry (U2013/13248) is dismissed. An Order to that effect will be issued with this Decision.

DEPUTY PRESIDENT

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