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

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sarah Stephens brought proceedings in the Fair Work Commission against 7 to 7 Dentist T/A the Counselling Collaborative Australia, alleging unfair dismissal. The Commission found in her favour, awarding compensation and reinstatement. The employer appealed the decision to the Federal Circuit and Family Court of Australia. Stephens sought to have the appeal dismissed on the basis that it was an abuse of process. The appeal court considered the arguments, finding that the appeal was not an abuse of process and remitted the matter back to the Commission for reconsideration.

The central issue before the appeal court was whether the appeal constituted an abuse of process. This required an examination of the grounds of appeal and whether they were frivolous or vexatious. The court found that the appeal was not an abuse of process, as the grounds of appeal were not frivolous or vexatious. The court held that the appeal court is empowered to review the merits of the decision, and it was appropriate to remit the matter back to the Commission for reconsideration.

The appeal court considered that the Commission had erred in law by not considering the relevant legislative provisions and by applying an incorrect legal test. The appeal court found that the Commission had not properly considered the evidence and had misapplied the law. The court concluded that the appeal was not an abuse of process and that the matter should be remitted back to the Commission for reconsideration. The appeal court did not make any orders regarding the compensation and reinstatement awarded by the Commission.

The appeal court remitted the matter back to the Commission for reconsideration, with directions to properly consider the evidence and apply the correct legal test. The appeal court did not make any orders regarding the compensation and reinstatement awarded by the Commission. The case highlights the importance of properly considering the evidence and applying the correct legal test when making decisions in unfair dismissal cases. It also demonstrates the role of the appeal court in reviewing the merits of a decision and ensuring that the correct legal principles are applied.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established