Susan Fay Bettridge v Foxleigh Management Pty Ltd

[2023] FWC 3100

[2023] FWC 3100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Susan Fay Bettridge
v

Foxleigh Management Pty Ltd

(U2023/8635)

DEPUTY PRESIDENT LAKE BRISBANE, 24 NOVEMBER 2023

Application for an unfair dismissal remedy – failure to prosecute – s.587 – application dismissed.

1. Susan Fay Bettridge (the Applicant) was employed by Foxleigh Management Pty Ltd (the Respondent) from 25 October 2021. The Applicant states she was dismissed on 21 August 2023. On 11 September 2023, the Applicant made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A Conciliation was listed on 10 October 2023 before the matter was allocated to me for determination. The Conciliation did not proceed as the Applicant advised the Staff Conciliator that she did not wish to reach an agreement with the Respondent.

1. The matter allocated to my Chambers on 1 November 2023. The matter was then listed for a Directions Conference on 7 November 2023 at 1:00pm. My Chambers attempted to contact the Applicant on the mobile phone number provided in the application. The Applicant did not respond.

1. On 10 November 2023, correspondence was sent from my Chambers noting that the application may be dismissed under s.587 of the Act due to the Applicant’s non-compliance with the Directions. The Applicant was given an opportunity to provide reasons for the delay.

1. On 20 November 2023, further correspondence was sent from my Chambers providing an additional opportunity for the Applicant to respond regarding the reasons for her delay and to file her submissions. A letter was sent to the address of her application. The Applicant was warned that the matter would be dismissed under s.587 of the Fair Work Act 2009 (Cth) if no response was received.

1. The Applicant has not responded to any correspondence to date.

1. Section 587 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, “without limiting when the 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. Due to the circumstances set out above, I have decided to dismiss the application for want of prosecution by the Applicant, pursuant to s.587(3)(a) of the Act.

1. I Order accordingly.

DEPUTY PRESIDENT

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