Ms Sally Tuiala v Logan Legal Centre

[2014] FWC 1746

[2014] FWC 1746

FAIR WORK COMMISSION

DECISION

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

Ms Sally Tuiala
v
Logan Legal Centre
(U2013/11668)

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 19 July 2013. The application was made by Ms Sally Tuiala (the Applicant) and the respondent employer is Logan Legal Centre (the Respondent).

[2] The Respondent objected to the application on the grounds that it is a small business employer and the Applicant had not been employed for the 12 month minimum period as required by s.382(a) and s.382(b) of the Act.

[3] A conciliation conference was convened on 30 August 2013 but was subsequently cancelled to allow the jurisdictional objection to be determined prior to the matter proceeding to conciliation. The application was then referred to me to hear the jurisdictional objection, and was listed for a Mention/Directions Conference on 2 October 2013.

[4] On 1 October 2013, an email was received from the Applicant, requesting an adjournment of the Directions Conference due to the Applicant being overseas and unable to take time off from her new job. Correspondence was emailed to the parties advising the request for an adjournment was granted, and requesting the Applicant to advise when she was in a position to progress the application.

[5] Correspondence was sent to the Applicant on 15 November 2013 and on 14 February 2014 requesting a written response. Further correspondence was sent to the Applicant on 26 February 2014 requesting a written response by 7 March 2014. To date there has been no response. 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”.

[6] To date no response has been received from the Applicant. The correspondence has been directed to the postal address provided by the Applicant on her application, and to the email address from which she had corresponded with the Commission.

[7] 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.”

[8] 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 Sally Tuiala (U2013/11668) is dismissed. An Order to that effect will be issued with this Decision.

DEPUTY PRESIDENT

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