Sarah Stephens v 7 to 7 Dentist T/A the Counselling Collaborative Australia

[2020] FWC 2037

[2020] FWC 2037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Stephens
v
7 to 7 Dentist T/A The Counselling Collaborative Australia
(U2019/14119)

VICE PRESIDENT CATANZARITI SYDNEY, 22 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 16 December 2019, the Fair Work Commission (the Commission) received an application from Sarah Stephens for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with ‘7 to 7 Dentist T/A The Counselling Collaborative Australia’.

[2] On 9 March 2020, 7 to 7 Dentist T/A The Counselling Collaborative (the respondent) filed an Employer Response to Unfair Dismissal Application (Form F3), raising a jurisdictional objection on the basis that Mrs Stephens’ application was lodged out of time. Mrs Stephens said her dismissal took effect on 3 December 2019. The respondent said it took effect on 8 October 2019.

[3] On 17 March 2020, my chambers sent Mrs Stephens correspondence about the extension of time issue. I directed her to provide a statement by 4:00 pm on 24 March 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 27 March 2020, my chambers sent further correspondence to Mrs Stephens, directing her to respond by 4:00 pm on 1 April 2020, and advising that if she did not respond, her application may be dismissed.

[5] To date, Mrs Stephens has not responded to any of 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.

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

VICE PRESIDENT

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