Tamara Hughes v Woodgate Club Inc

[2023] FWC 964

[2023] FWC 964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tamara Hughes
v

Woodgate Club Inc

(U2023/1616)

DEPUTY PRESIDENT LAKE BRISBANE, 8 MAY 2023

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

1. Tamara Hughes (the Applicant) was employed by Woodgate Club Inc (the Respondent) on 7 October 2020 until she was dismissed on 14 February 2023. On 28 February 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A Conciliation was listed on 28 March 2023 before the matter was allocated to me. The Conciliator attempted to contact the Applicant on 3 occasions at 9.15am, 9.16am and 9.20am, and attempted to contact the Applicant again at 9.44am with no response. The conciliation did not take place. The matter was then allocated to me for determination.

1. The matter was listed for Directions Conference on 11 April 2023 at 2:00pm. My Associate attempted to contact the Applicant at 2:00pm, 2:02pm and 2:15pm with the number provided in the Form F2 with no response. My Associate sent an email on 12 April 2023 requesting why the Applicant did not appear at this conference by close of business 18 April 2023 or the Application may be dismissed under s.587 of the Fair Work Act 2009 (Cth).

1. An email was sent from my Chambers on 24 April 2023 providing an additional opportunity for the Applicant to respond as to why they have not responded to any of the Commission’s correspondence. The Applicant was warned again that the matter may be discontinued under s.587 of the Fair Work Act 2009 (Cth) if she did not respond.

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, or an application under s527F that does not consist solely of an application for a stop sexual harassment order 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 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.

1. I Order accordingly.

DEPUTY PRESIDENT

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