Patricia O'Connor v Jindalee Aged Care Residence

[2024] FWC 2550

[2024] FWC 2550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patricia O’Connor
v

Jindalee Aged Care Residence

(U2024/5822)

DEPUTY PRESIDENT EASTON SYDNEY, 17 SEPTEMBER 2024

Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative - for want of prosecution

1. On 22 May 2024 Mrs Patricia O’Connor filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. For the following reasons I am satisfied that Mrs O’Connor’s application should be dismissed for want of prosecution.

1. A conciliation conference was scheduled on 1 July 2024 however Mrs O’Connor did not attend nor did Mrs O’Connor respond to an email sent from chambers regarding the legal name discrepancy.

1. 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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia[2013] FWCFB 2532 at [39]).

1. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. Mrs O’Connor has not provided any reasons for her non-compliance despite receiving communication and opportunity.

1. On 6 August 2024 an email was sent to Mrs O’Connor advising that I was considering dismissing the application under s.587 of the Act for want of prosecution and provided Mrs O’Connor a further opportunity to file any submissions and/or evidence as to why his application should not be dismissed.

1. Since then no response has been received from Mrs O’Connor. I am satisfied that Mrs O’Connor has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge[2024] FWC 1302 at [15]-[16] and the cases cited therein).

1. I am satisfied that Mrs O’Connor has demonstrated that she does not intend to prosecute her application. Mrs O’Connor has failed to attend a conciliation conference before a staff member, and has not responded to attempts to contact her.

1. For these reasons I have decided to dismiss Mrs O’Connor’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR779354).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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