Sarah Beaven v Katarzyna T/A Poppalouis Operations Pty Ltd

[2020] FWC 3260

[2020] FWC 3260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Beaven
v
Katarzyna T/A Poppalouis Operations Pty Ltd
(U2020/3537)

VICE PRESIDENT CATANZARITI SYDNEY, 22 JUNE 2020

Application for an unfair dismissal remedy.

[1] Sarah Beaven (the applicant) states she was employed by ‘Katarzyna T/A Poppalouis Operations Pty Ltd’ from around 16 September 2019 until her dismissal took effect on 13 March 2020. On 24 March 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 27 April 2020, Poppalouis (Operations) Pty Ltd T/A Fairways Tavern & Golf Course (the respondent) filed an Employer’s Response (Form F3), objecting to Mrs Beaven’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. It also said that it had complied with the Small Business Fair Dismissal Code in effecting Mrs Beaven’s dismissal.

[3] My chambers wrote to the applicant on 21 May 2020, 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 28 May 2020. We received no response from the applicant by that deadline.

[4] On 29 May 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 3 June 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to the Commission’s correspondence.

[6] 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.”

[7] 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).

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

VICE PRESIDENT

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