Shania Schwerin v Aa Domestic Cleaning Services

[2023] FWC 1024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shania Schwerin
v

Aa Domestic Cleaning Services

(U2023/2455)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 1 MAY 2023

Application for an unfair dismissal remedy

On 23 March 2023, Ms Shania Schwerin made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application form filed by Ms Schwerin was incomplete in that she did not provide the date that her dismissal took effect, any methods of service for the Respondent and questions 3.1 and 3.2 on the application form that relate to any reasons for the dismissal and why the dismissal was unfair were left unanswered.

On 29 March 2023, the Commission emailed correspondence to Ms Schwerin’s nominated email address requesting she provide the missing information as her application is incomplete. That correspondence also advised that if the information was not provided within 14 days, her application may be dismissed.

On 30 March 2023, the Commission attempted to contact Ms Schwerin on her nominated telephone number to request the missing details. The Commission advised Ms Schwerin of the missing details on the application form. Ms Schwerin advised she will consult with her lawyer and will provide a completed Unfair Dismissal application form to the Commission.

As the required information was not received, on 12 April 2023 the Commission attempted to contact Ms Schwerin on her nominated telephone number. However, Ms Schwerin could not be reached. A voicemail message was left requesting Ms Schwerin to contact the Commission.

To date, no response has been received and Ms Schwerin has not provided the necessary details as requested.

Section 587(1) of the FW Act provides as follows:

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 prospect of success.

In these circumstances, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) of the FW Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Shania Schwerin has applied to the Fair Work Commission for a remedy for unfair dismissal against Aa Domestic Cleaning Services. The application was deemed incomplete by the Commission as it did not include the date of dismissal, methods of service for the respondent, and answers to questions regarding the reasons for dismissal and why it was unfair. Despite attempts to contact Ms Schwerin and requests for the missing information, the Commission did not receive the necessary details within the specified time frame. Consequently, the Commission dismissed the application under section 587(1)(a) of the Fair Work Act, finding it was not made in accordance with the Act.

The key legal issue before the Deputy President was whether the application could be dismissed for being incomplete, despite Ms Schwerin's intention to provide the missing information later. Under section 587(1) of the Fair Work Act, the Commission has the discretion to dismiss an application if it is not made in accordance with the Act, among other grounds. The Deputy President found that the application was not made in accordance with the Act because it lacked essential details and Ms Schwerin did not provide the requested information within the timeframe. The Deputy President determined that the application did not meet the basic requirements and dismissed it.

In reaching the decision, the Deputy President considered the provisions of the Fair Work Act that allow for the dismissal of applications that do not comply with the Act. The Deputy President noted that the Commission had made reasonable efforts to contact Ms Schwerin and request the missing information. However, Ms Schwerin did not respond to the Commission's requests, and the application remained incomplete. The Deputy President concluded that the application could not proceed without the missing details and dismissed it under section 587(1)(a) of the Act. This decision highlights the importance of submitting complete and accurate information when making an application to the Fair Work Commission.

The Fair Work Commission dismissed Shania Schwerin's application for a remedy for unfair dismissal against Aa Domestic Cleaning Services. The Commission found that the application was incomplete and did not comply with the requirements of the Fair Work Act. Despite attempts to contact Ms Schwerin and requests for the missing information, the Commission did not receive the necessary details within the specified time frame. Consequently, the application was dismissed under section 587(1)(a) of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established