Ms Sarah Dean v DWP Ventures Pty Ltd

[2013] FWC 8980

[2013] FWC 8980

FAIR WORK COMMISSION

DECISION

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

Ms Sarah Dean
v
DWP Ventures Pty Ltd
(U2013/10828)

COMMISSIONER BOOTH BRISBANE, 19 NOVEMBER 2013

Not the employer, independent contractor and minimum employment period - Application dismissed under s.399A of the Act.

[1] On 24 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for alleged unfair dismissal was lodged by Ms Sarah Dean (the Applicant). At the time Ms Dean was represented by A Whole New Approach Pty Ltd, however, a Form F54 Notice of Representative Ceasing to Act was lodged on 30 September 2013.

[2] The Application filed by the Applicant states that she commenced employment with MarketSolve Pty Ltd in July 2012 and that her dismissal took effect on 4 June 2013.

[3] On 31 July an Employer’s Response to Application for Unfair Dismissal Remedy (Form F3) was lodged by DWP Ventures Pty Ltd (the Respondent) advising the Fair Work Commission that they are the Respondent, and that the employment period is from 25 March 2013 to 4 June 2013.

[4] On 12 September 2013 MarketSolve Pty Ltd lodged an Objection to Application for Unfair Dismissal Remedy (Form F4) on the basis that:-

● the Applicant was not an employee of MarketSolve Pty Ltd, named in the Applicant’s Application;

● the Applicant was a contractor carrying out contracted call centre work for Mr Darren Podesta for 2 periods from 17 September to 15 December 2012 and from 12 January 2013 to 22 March 2013; and

● the Applicant was employed as a full time Call Centre Operator by DWP Ventures Pty Ltd for the period of 25 March 2013 to 4 June 2013 and had not completed the minimum employment period.

[5] The matter was listed for Directions on 30 October 2013 at 1.30 pm by telephone. Mr Podesta appeared by telephone on behalf of the Respondent and 3 attempts to contact Ms Dean were unsuccessful.

[6] Correspondence was emailed and express posted to the Applicant on 30 October 2013 requiring her to advise the Fair Work Commission (the Commission) by 13 November 2013 whether she wished to proceed with her Application. To date no response has been received.

[7] After the attempts to contact the Applicant and the lack of response from the Applicant, I am satisfied the she does not intend to pursue her Application.

[8] Therefore it is unnecessary for me to make a determination on the jurisdiction issues raised by MarketSolve Pty Ltd.

[9] I turn now as to how the matter will be dealt with. 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.

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.

[10] I have decided to dismiss the Application under s.587 on the basis that the Applicant has failed to attend a conference conducted by the Commission and failed to comply with a direction of the Commission relating to the Application. An Order to this effect will be issued simultaneously.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544569>