Ms Amy Margaret Hemingway v Ebb and Tide Cafe

[2017] FWC 2897

[2017] FWC 2897

FAIR WORK COMMISSION

DECISION

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

Ms Amy Margaret Hemingway
v
Ebb and Tide Cafe
(U2017/1295)

COMMISSIONER RIORDAN SYDNEY, 25 MAY 2017

Application for an unfair dismissal remedy.

[1] Ms Amy Hemingway was employed by Ebb and Tide Cafe between 8 December 2014 and 5 February 2017.

[2] Ms Hemingway did not attend the teleconference that was convened by the Fair Work Commission’s Conciliator on 10 April 2017.

[3] The matter was listed before the Fair Work Commission (FWC), as presently constituted, for a conciliation / directions conference on 2 May 2017 by telephone. Ms Hemingway was sent an email reminder of this conference on 1 May 2017 which included the following sentence:

“This is formal notification, that if you fail to participate in the teleconference before Commissioner Riordan tomorrow, your application may be dismissed in your absence.”

[4] On 23 May 2017, my Associate sent an email to Ms Hemingway seeking an explanation for her non-attendance at the conciliation / directions conference. Ms Hemingway did not respond.

Relevant legislation

[5] Section 587 of the Fair Work Act, 2009 (the Act) states:

Section 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

[6] Ms Hemingway has failed to participate in the processes of the Fair Work Commission on a number of occasions. Attempts to contact Ms Hemingway by telephone and email have proven to be unsuccessful. I am of the view that Ms Hemingwya’s application was vexatiously submitted.

[7] After considering all of the circumstances, and taking into account section 587 of the Act, I have decided to dismiss Ms Hemingway’s application for an unfair dismissal remedy.

[8] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR593239>