Sibila Gerden v NSW Department of Education

[2022] FWC 1031

[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.

1. 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.
   
   

2. 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.
   
   

3. 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.

1. 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.
   
   

2. To date, Sibila Gerden has not responded to any of the Commission’s correspondence.

1. 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.”

1. 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).

1. 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

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