Sarah Mills v Maddington Hyundai & Isuzu Ute

[2024] FWC 1210

[2024] FWC 1210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sarah Mills
v

Maddington Hyundai & Isuzu Ute

(U2024/667)

DEPUTY PRESIDENT EASTON SYDNEY, 9 MAY 2024

Application for an unfair dismissal remedy

1. Ms Sarah Mills was dismissed from her employment on 5 January 2024. On 20 January 2024, Ms Mills filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In her application Ms Mills named “Maddington Hyundai & Isuzu Ute” as her former employer.

1. The legal business name nominated by the Respondent in its F3 – Employer’s Response Form was AL Maddington Pty Ltd.

1. On 11 April 2024, correspondence was sent to Ms Mills regarding the legal name of her former employer. The correspondence invited Ms Mills to request an amendment to her application to name a different entity as her former employer, or to provide submissions as to why the entity she nominated was the correct entity. Ms Mills was required to respond by 18 April 2024. Ms Mills did not respond to this correspondence.
   
   

2. Further correspondence was sent to Ms Mills on 22 April 2024 making the same request. Ms Mills was required to respond by 26 April 2024. Ms Mills was also advised that her application may be dismissed without further notice if she did not respond. Ms Mills did not respond to this correspondence.

1. On 29 April 2024 the Commission attempted to contact Ms Mills via telephone. However, Ms Mills could not be reached, and her telephone did not allow voicemail messages to be left.

1. To date, Ms Mills has not responded to any of the Commission’s attempts to contact her.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. 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).

1. In the circumstances I have decided to dismiss Ms Mills’ application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR774670).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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