Rebecca Maddin v Vita Hotels T/A Rydges

[2019] FWC 7594

[2019] FWC 7594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Maddin
v
Vita Hotels T/A Rydges
(U2019/8394)

VICE PRESIDENT CATANZARITI DARWIN, 4 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Rebecca Maddin states she was employed by Vita Hotels T/A Rydges until her dismissal took effect on 25 July 2019.

[2] On 30 July 2019, Miss Maddin applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] On 7 August 2019, Vita Hotel Gladstone Pty Ltd T/A Rydges Hotel Gladstone (the Respondent) filed an Employer’s Response (Form F3), objecting to Miss Maddin’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. Miss Maddin said she first started working for the Respondent on 17 September 2018. The Respondent said that Miss Maddin only started working for it on 13 February 2019.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Miss Maddin on 15 October 2019, 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 22 October 2019. However, we received no response from Miss Maddin by that time.

[5] On 23 October 2019, my chambers sent further correspondence to Miss Maddin, directing her to provide a response by 4:00 pm on 28 October 2019. She was advised that in the absence of a reply, her application may be dismissed.

[6] To date, Miss Maddin has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

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

VICE PRESIDENT

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