Olivia Kendal v Muffin Break Riverlink

[2020] FWC 3949

[2020] FWC 3949

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olivia Kendal
v
Muffin Break Riverlink
(U2020/7593)

VICE PRESIDENT CATANZARITI SYDNEY, 28 JULY 2020

Application for an unfair dismissal remedy.

[1] Olivia Kendal (the applicant) states that she worked for ‘Muffin Break Riverlink’ from 5 May 2015 to 24 May 2020. On 2 June 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 14 June 2020, JK Brewed ATF Brewed Trust T/A Muffin Break Ipswich (the respondent) filed an Employer’s Response (Form F3), objecting to Miss Kendal’s application on various bases, including that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy.

[3] My chambers wrote to the applicant on 1 July 2020, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 8 July 2020. We received no response from the applicant by that deadline.

[4] On 9 July 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 14 July 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to the Commission’s correspondence.

[6] 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.”

[7] The words, “[w]ithout 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).

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

VICE PRESIDENT

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