Natalie Ryan v Tempo Holidays Pty Ltd Summary

[2023] FWC 156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Natalie Ryan
v

Tempo Holidays Pty Ltd

(U2019/10818)

COMMISSIONER BISSETT

MELBOURNE, 19 JANUARY 2023

Application for an unfair dismissal remedy

On 24 September 2019 Ms Natalie Ryan (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging she was unfairly dismissed by Tempo Holidays Pty Ltd (the Respondent).

On 22 October 2019 the Commission was made aware that the Respondent had entered external administration. On 14 January 2020 a Decision[1] was issued staying the matter until leave of a Court was granted.

On 6 January 2023 the Commission sent correspondence to Ms Ryan’s nominated email address advising her that her matter is at risk of being dismissed as it is apparent she does not intend to seek the leave of the Court. Ms Ryan was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Ms Ryan.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Ms Ryan, I am satisfied that Ms Ryan’s application has no reasonable prospects of success.

As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

[1] [2020] FWC 132

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CaseChat Overview and Summary

In the case of Natalie Ryan v Tempo Holidays Pty Ltd, the applicant, Ms Natalie Ryan, sought a remedy for unfair dismissal against the respondent, Tempo Holidays Pty Ltd, under section 394 of the Fair Work Act 2009. Ms Ryan alleged that she was unfairly dismissed by the respondent. The matter was initially heard in the Fair Work Commission in Melbourne, but the respondent entered external administration, leading to a stay of the matter until leave of a court was granted. The Commission later issued correspondence to Ms Ryan, requesting a response by a specified date, but no response was received. The Commission found that, given the circumstances, Ms Ryan's application had no reasonable prospects of success.

The central legal issues in this case were whether the Commission had the authority to dismiss the application under section 587(1)(c) of the Fair Work Act 2009, and whether Ms Ryan's failure to seek leave of the Court rendered her application without reasonable prospects of success. The Commission had to determine if Ms Ryan's application was made in accordance with the Act, if it was frivolous or vexatious, and if it had reasonable prospects of success. The Commission concluded that the application did not meet the criteria for a reasonable prospect of success due to Ms Ryan's inaction in seeking leave of the Court.

Commissioner Bissett found that the application should be dismissed pursuant to section 587(1)(c) of the Fair Work Act 2009, as it was apparent that Ms Ryan did not intend to seek leave of the Court, and thus, the application had no reasonable prospects of success. The Commission issued an order dismissing the application, emphasizing that the dismissal was due to the lack of action from Ms Ryan in pursuing the necessary court leave. This decision highlights the importance of following procedural requirements when seeking remedies under the Fair Work Act.

The final order of the Commission was that the application for an unfair dismissal remedy by Ms Natalie Ryan against Tempo Holidays Pty Ltd be dismissed pursuant to section 587(1)(c) of the Fair Work Act 2009. This decision underscores the necessity for applicants to adhere to the procedural mandates of the Act and to act promptly in seeking necessary judicial intervention when required.

Natalie Ryan v Tempo Holidays Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established