Patricia O'Connor v Jindalee Aged Care Residence Summary

[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

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).

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

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.

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.”

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]).

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).

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

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.

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).

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.

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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Patricia O'Connor v Jindalee Aged Care Residence, the applicant, Mrs Patricia O'Connor, filed an application for a remedy for unfair dismissal under Section 394 of the Fair Work Act 2009. The application was dismissed by the Fair Work Commission for want of prosecution. The Commission scheduled a conciliation conference on 1 July 2024, which Mrs O'Connor did not attend, and she did not respond to an email from the Commission regarding a legal name discrepancy. The Commission subsequently sent another email on 6 August 2024 advising that the application was under consideration for dismissal and providing an opportunity for Mrs O'Connor to file any submissions or evidence to prevent dismissal. Despite this, no response was received, leading to the conclusion that Mrs O'Connor did not intend to prosecute her application.

The legal issue before the Commission was whether it had the authority to dismiss Mrs O'Connor's application for unfair dismissal for want of prosecution. The Commission cited Section 587 of the Act, which allows for the dismissal of an application if it appears that the applicant has ceased to pursue or participate in the proceedings. The Commission determined that it could dismiss the application on its own initiative, provided procedural fairness was observed. Mrs O'Connor had been afforded opportunities to address the issues and respond to communications, but she failed to do so, leading to the conclusion that she did not intend to prosecute her application.

Deputy President Easton considered that Mrs O'Connor had been given ample opportunity to present her case and had failed to respond to the Commission's attempts to contact her. Given the lack of participation and response, the Deputy President found that Mrs O'Connor did not intend to prosecute her application. Consequently, the application was dismissed for want of prosecution under Section 587(3)(a) of the Act. The Deputy President also made an order to this effect.

The final orders of the Commission were that Mrs O'Connor's application for a remedy for unfair dismissal be dismissed for want of prosecution. The dismissal was based on the applicant's failure to attend a scheduled conciliation conference, non-response to communications from the Commission, and the overall lack of intent to pursue the application. The order effectively brought the proceedings to an end, affirming the Commission's decision and the procedural fairness observed in the dismissal process.

Patricia O'Connor v Jindalee Aged Care Residence

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established