Taryn Johns (Nee Shearer) v Swansea Shores Pty Ltd (One Agency Eastlakes)

[2022] FWC 2125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Taryn Johns (Nee Shearer)
v

Swansea Shores Pty Ltd (One Agency Eastlakes)

(U2022/5866)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 AUGUST 2022

Application for an unfair dismissal remedy.

Taryn Johns (the applicant) was employed by Swansea Shores Pty Ltd (One Agency Eastlakes) (the respondent) from the 15^th of December 2020 until she was dismissed on the 24^th of May 2022.

On the 31^st of May 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Swansea Shores Pty Ltd ATF Swansea Shores Investment Trust.
On the 19^th of July 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 26^th of July 2022. No response was received at this time.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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

Taryn Johns (nee Shearer) made an application for unfair dismissal against Swansea Shores Pty Ltd (One Agency Eastlakes) under section 394 of the Fair Work Act 2009. Johns was employed by Swansea Shores Pty Ltd (One Agency Eastlakes) from 15 December 2020 until her dismissal on 24 May 2022. Following her dismissal, she applied for a remedy on 31 May 2022. The respondent identified itself in the F3 – Employer’s Response Form as Swansea Shores Pty Ltd ATF Swansea Shores Investment Trust. The Commission sent correspondence to Johns regarding the discrepancy in the legal business name on 19 July 2022 and requested a response by 26 July 2022. No response was received from Johns. The Commission made several further attempts to contact Johns, but none were successful.

The primary legal issue for the Commission was whether to dismiss the application for unfair dismissal under section 587 of the Fair Work Act 2009. Section 587(1) of the Fair Work Act 2009 allows the Fair Work Commission to 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. Section 587(3) of the Act provides that the Commission may dismiss an application on its own initiative or on application. The Commission considered the lack of response from the applicant, despite multiple attempts to contact her, and decided that the application should be dismissed for want of prosecution.

In reaching its decision, the Commission noted that the words, “Without limiting when the FWC may dismiss an application” at the commencement of section 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 section 587(1)(a), (b) and (c). The Commission determined that the application had not been made in accordance with the Act due to the discrepancy in the legal business name and that the application had no reasonable prospects of success due to the lack of response from the applicant. The Commission decided to dismiss the application for want of prosecution pursuant to section 587(3)(a) of the Act.

The Fair Work Commission ordered that the application for unfair dismissal be dismissed for want of prosecution. The order was made under section 587(3)(a) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established