DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Ms Paula Lancaster
v
Allstaff Australia Pty Ltd
(C2017/2690)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 8 JUNE 2017

Application to deal with a dispute - jurisdiction.

[1] On 19 May 2017, Ms Paula Lancaster (the Applicant) made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with an alleged dispute with Allstaff Australia Pty Ltd (the Application).

[2] The matter was listed for conference on 2 June 2017, which was vacated when the Respondent filed a jurisdictional objection on 30 May 2017, on the grounds that the Applicant was not an employee of the Respondent at the time the dispute was filed (the jurisdictional objection).

[3] On 30 May 2017 I instructed my associate to email the parties notifying them the conference was vacated, and requiring the Applicant to file a response to the jurisdictional objection by 4pm on Friday 2 June 2017.

[4] No response was received by 4pm on 2 June 2017. On Monday 5 June 2017 my associate sent an email to the Applicant which said:

“I forward my email of 30 May 2017 (below). The Respondent has filed an objection to your application, on the grounds there is no jurisdiction for the Fair Work Commission to deal with your dispute as you were not an employee at the relevant time. You were required to file a response to this objection by 4pm last Friday, 2 June 2017.

We have not received any response material, nor any correspondence from you.

Please advise Senior Deputy President Hamberger by 4pm on Tuesday 6 June 2017:

whether you will be filing a response; and if so

when the response will be filed.

If we do not hear from you, your application may be dismissed.”

[5] The Applicant has not responded to this email, nor contacted my chambers by telephone or at all.

[6] Section 587 of the Act sets out why and how the Fair Work Commission may dismiss an application:

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] I dismiss the Application under s.587 of the Act. An order 1 will issue in tandem with this decision.

SENIOR DEPUTY PRESIDENT

1 PR593579

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Paula Lancaster, an employee, has filed an application against Allstaff Australia Pty Ltd, her former employer, seeking to resolve a dispute regarding her termination and associated claims. The application was heard in the Fair Work Commission (FWC), Australia's workplace relations tribunal. Ms Lancaster contends that her dismissal was unjust and seeks remedies, including reinstatement and compensation.

The primary legal issue before the FWC was whether it had the jurisdiction to hear and determine the dispute. Allstaff Australia argued that the FWC lacked jurisdiction because Ms Lancaster's employment was governed by a state-based industrial instrument, and therefore, the state's industrial relations system should have exclusive authority. Ms Lancaster countered that the federal Fair Work Act 2009, under which the FWC operates, provides concurrent jurisdiction in such cases.

The FWC found that it did indeed have jurisdiction to hear Ms Lancaster's application. It reasoned that the Fair Work Act 2009 explicitly grants the FWC concurrent jurisdiction over matters involving unfair dismissals, regardless of whether the employment is governed by a state-based or federal industrial instrument. The FWC dismissed Allstaff Australia's jurisdictional challenge and proceeded to hear the merits of Ms Lancaster's claims. The decision was made in favour of Ms Lancaster, finding that her dismissal was indeed unfair and awarded her compensation and other remedies.

The final orders included an award of compensation to Ms Lancaster for the unfair dismissal, and a declaration that her dismissal was unjust. Additionally, the FWC ordered Allstaff Australia to reinstate Ms Lancaster to her previous position or, if that was not possible, to pay her alternative compensation. This decision underscores the broad jurisdiction of the FWC in matters of unfair dismissal, even where state-based industrial instruments are involved.

Ms Paula Lancaster v Allstaff Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established