Ms Hannah Phelan v Rainbow Power Company Ltd

[2024] FWC 2812

[2024] FWC 2812

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Hannah Phelan
v

Rainbow Power Company Ltd

(U2024/5624)

DEPUTY PRESIDENT EASTON SYDNEY, 9 OCTOBER 2024

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 22 May 2024, Ms Hannah Phelan filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A conciliation conference was scheduled on 4 September 2024 however Ms Phelan did not attend.

1. After multiple attempts to contact Ms Phelan on 4 September 2024, correspondence was sent to Ms Phelan in relation to her non-attendance and was informed that the matter will be referred to a Fair Work Commission Member.

1. To date, Ms Phelan has not responded to any of the Commission’s attempts to contact her.

1. 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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The words, “Without 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).

1. Further information was sought on 12 September from Ms Phelan about whether she wishes to continue her claim

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. Ms Phelan has been on notice of the likely consequences of her application if she does not respond.

1. In the circumstances I have decided to dismiss Ms Phelan’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR780084).

DEPUTY PRESIDENT

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