Tanya Rose Donovan v Royal Hotel Kew Pty Ltd

[2022] FWC 1278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tanya Rose Donovan
v

Royal Hotel Kew Pty Ltd

(U2022/4540)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 MAY 2022

Application for an unfair dismissal remedy.

Tanya Rose Donovan was employed by Royal Hotel Kew Pty Ltd from the 18^th of May 2021 until they were dismissed on the 13^th of December 2021.

On the 19^th of April 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged 107 days out of time.
On the 13^th of May 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and the applicant was required to respond by the 18^th of May 2022.
On the 19^th of May 2022, further correspondence was sent to the applicant directing them to provide a response by 5:00pm on the 20^th of May 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Tanya Rose Donovan has not responded to any of the correspondence that my Chambers has sent to this date.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Tanya Rose Donovan, was employed by Royal Hotel Kew Pty Ltd until her dismissal on 13 December 2021. Donovan made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act) on 19 April 2022, 107 days out of time. After multiple warnings, the application was dismissed for want of prosecution under section 587 of the Act.

The primary legal issue was whether the application could be dismissed under section 587 of the Act, given it was lodged outside of the time limit. The applicant was required to respond to correspondence from the Commission but failed to do so. The court considered the wording of section 587(1) which establishes that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in the section.

The court held that it had the jurisdiction to dismiss the application on its own initiative, pursuant to section 587(3)(a) of the Act. The applicant did not respond to correspondence from the Commission, and had not shown any reasonable prospects of success for the application. The application was dismissed for want of prosecution.

An order will issue with this decision, dismissing the application.

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