Rhiannon McDowell v Sportsmagic Pty Ltd

[2018] FWC 6044

[2018] FWC 6044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhiannon McDowell
v
Sportsmagic Pty Ltd
(U2018/7407)

DEPUTY PRESIDENT DEAN SYDNEY, 27 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 July 2018, Ms Rhiannon McDowell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms McDowell’s application states that she commenced employment with Sportsmagic Pty Ltd (Sportsmagic) in March 2017 and that her dismissal took effect on 18 June 2018.

[3] The application appeared to have been filed 8 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 10 August 2018, Sportsmagic filed an Employers Response (form F3) objecting to the application on the grounds that Ms McDowell’s application had been filed outside of the 21 day period.

[5] A conciliation conference scheduled for 10 September 2018 did not proceed because Ms McDowell was not contactable.

[6] The matter was allocated to me to determine whether an extension of time should be granted.

[7] On 13 September 2018, the Commission wrote to Ms McDowell asking for a written explanation as to the late filing of her application. She was asked to provide this statement no later than 4pm on Thursday 20 September 2018. No response was received.

[8] On 21 September 2018, correspondence was sent to Ms McDowell noting she had previously been directed to file a statement in the Commission but had not done so. She was given until 4pm Tuesday 25 September 2018 to respond and was advised that in the absence of any material being received her application may be dismissed.

[9] Final attempts were made to contact Ms McDowell by telephone on 26 September 2018.

[10] To date Ms McDowell has not responded to any of the Commission’s correspondence.

[11] Section 587(1) 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] The words, “Without 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).

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

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

DEPUTY PRESIDENT

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