Nicky Meyers v Brand Influence Group

[2019] FWC 1622

[2019] FWC 1622

FAIR WORK COMMISSION

DECISION

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

Nicky Meyers
v
Brand Influence Group
(U2018/12311)

DEPUTY PRESIDENT DEAN SYDNEY, 20MARCH 2019

Application for an unfair dismissal remedy.

[1] On 29 November 2018, Ms Nicky Meyers made an application under s.394 of the Fair Work Act 2009 for a remedy in respect of her alleged unfair dismissal by Brand Influence Group.

[2] The application was listed for telephone conciliation before a Fair Work Commission conciliator on 20 December 2018 but could not take place as Ms Meyers was unable to be contacted at that time. Ms Meyers later advised she was unavailable for the conciliation due to having to take her daughter for medical treatment.

[3] A second conciliation was scheduled for 8 February 2019. When contacted for the conciliation Ms Meyers stated she was unavailable to participate as she was at work. Brand Influence group declined to participate in any further conciliation of the matter noting it had been available on two occasions and Ms Meyers had not.

[4] On 14 February 2019, the Commission wrote to Ms Meyers requesting her to advise, by 18 February 2019, whether she wished to proceed with her application. No response was received to the correspondence.

[5] On 25 February 2019, further correspondence was sent to Ms Meyers directing her to advise my chambers, by 4:00pm on 28 February 2019, whether she wished to proceed with her application. She was advised that in the absence of a reply her application may be dismissed.

[6] Final attempts were made to contact Ms Meyers by telephone on 4 March 2019.

[7] Ms Meyers has not responded to any of the correspondence sent to her since 14 February 2019.

[8] 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[9] 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).

[10] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[11] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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