Rachaele Przybyszewski v Diabetes Australia Victoria

[2011] FWA 4213

[2011] FWA 4213

FAIR WORK AUSTRALIA

DECISION

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

Rachaele Przybyszewski
v
Diabetes Australia Victoria
(U2010/2028)

COMMISSIONER SMITH MELBOURNE, 7 JULY 2011

Section 587 application to dismiss an application made pursuant to s.394 of the Act.

[1] This is an application pursuant to s.587 by Diabetes Australia—Victoria Ltd to dismiss an application by Ms Rachaele Przybyszewski made pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Section 587 of the Act gives power to Fair Work Australia to dismiss applications on certain specified grounds. It provides as follows:

587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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), FWA 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) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.

[3] It is apparent that there are three grounds upon which an application may be dismissed. They are that the application is not made in accordance with the Act, it is frivolous or vexatious or the application has no reasonable prospects of success.

[4] In its grounds and reasons in support of its application Diabetes Australia draws attention to significant procedural failings by the applicant in prosecuting her claim. Procedural failings are not comprehended in the stipulated grounds and therefore it is not possible to dismiss the application on that basis alone.

[5] Indeed when the matter was listed for hearing on 3 June 2011 Ms Przybyszewski did not attend and at that time I indicated that the application was dismissed. However, subsequent investigation found that Ms Przybyszewski had left a message prior to the proceedings commencing that she was ill and this prevented her attendance. Out of an abundance of caution I advised the parties that I would not dismiss the matter until Ms Przybyszewski had explained her absence and had been given the opportunity to be heard. I was subsequently provided with a medical certificate for the day and written submissions were filed.

[6] The significant matter relates to Ms Przybyszewski’s refusal to accept an open offer for settlement. The offer, amongst other things, was 10 weeks salary. This was in addition to a retrenchment package of four weeks wages, two weeks pay in lieu or notice and an additional two weeks ex gratia payment. Diabetes Australia argues that the termination of employment related to a genuine redundancy but that it had failed to comply with the consultation clause in the award. On this basis it made the offer of settlement. Indeed, its proposal was that the hearing ought to confine itself to remedy only.

[7] Given this approach it is not possible for me to conclude that the application:

• is not made in accordance with this Act; or



• is frivolous or vexatious; or



• has no reasonable prospects of success.

[8] Accordingly the s.587 application is dismissed.

[9] The employer should now provide its written submissions within 14 days.

COMMISSIONER

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