Sibila Gerden v NSW Department of Education

[2022] FWC 1031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sibila Gerden
v

NSW Department of Education

(U2022/811)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

On the 17th of January 2022, Sibila Gerden (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, NSW Department of Education NSW.
A conciliation before a Commission staff conciliator was listed for the matter on the 28th of March at 9:15amAEDT, however the conciliation did not take place due to the respondent refusing participation in conciliation.
My chambers sent correspondence to the applicant on the 22nd of February 2022, directing her to advise the Fair Work Commission by 4:00pm on the 1st of March whether she wishes to continue her application despite the respondent raising objections on the grounds that the respondent is not a National System Employer. However, we received no response from the applicant by that time.

On the 4th of March 2022, my chambers sent further correspondence to the applicant, directing her to provide a response by 5:00pm on the 9th of March 2022. She was advised that in the absence of a reply, her application may be dismissed.
To date, Sibila Gerden has not responded to any of the Commission’s correspondence.

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.”

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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sibila Gerden filed an application against the NSW Department of Education before the Fair Work Commission, seeking a remedy for unfair dismissal under the Fair Work Act 2009. The application was lodged on 17 January 2022. The Commission had scheduled a conciliation for 28 March 2022, but the Department of Education declined to participate. The applicant failed to respond to multiple correspondences from the Commission, which had set deadlines for her to confirm her intention to proceed with the application. The most recent correspondence was sent on 4 March 2022, with a response deadline of 9 March 2022. The applicant did not respond by this deadline, nor did she respond to any of the Commission’s correspondence.

The Fair Work Commission had to decide whether to dismiss the application under section 587 of the Act. The section provides that the Commission may dismiss an application if it is not made in accordance with the Act, if it is frivolous or vexatious, or if it has no reasonable prospects of success. The Commission found that the applicant had failed to respond to multiple correspondences and deadlines set by the Commission, and therefore, her application had no reasonable prospects of success. The Commission also found that the application could be dismissed for want of prosecution.

The Fair Work Commission decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act. The Commission noted that 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). The Commission found that the applicant's failure to respond to multiple correspondences and deadlines set by the Commission was sufficient grounds to dismiss the application.

The Commission dismissed the application for want of prosecution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established