Shyanna Jean Sunderland v Mclean Care

[2021] FWC 6293

[2021] FWC 6293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shyanna Jean Sunderland
v
Mclean Care
(U2021/9281)

VICE PRESIDENT CATANZARITI SYDNEY, 9 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 15 October 2021, Shyanna Sunderland filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to her employment with ‘Mclean Care’ (the respondent).

[2] Miss Sunderland’s application says that her dismissal took effect on 23 September 2021. Accordingly, the application was lodged outside of the 21-day period prescribed by s.394(2) of the Act.

[3] On 27 October 2021, my chambers sent correspondence to Miss Sunderland, directing her to respond in writing by 1 November 2021 explaining why she believed there were exceptional circumstances such that she should be granted an extension of time in which to validly lodge her application.

[4] On 2 November 2021, my chambers sent further correspondence to Miss Sunderland, noting she had not responded and directing her to provide a response by 4 November 2021. She was advised that in the absence of a reply, her application may be dismissed without further notice.

[5] On 5 November 2021, my chambers rang Miss Sunderland on the mobile telephone number provided on her application form and left a voice mail message asking her to call back urgently if she still pressed her application.

[6] To date, Miss Sunderland has not responded to any of the Commission’s attempts to contact her.

[7] 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] 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 ss.587(1)(a), (b) and (c).

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

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

VICE PRESIDENT

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