Taylah Collins v Jones & Daughters Pty Ltd

[2022] FWC 1129

[2022] FWC 1129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Taylah Collins
v

Jones & Daughters Pty Ltd

(C2022/511)

DEPUTY PRESIDENT MOLTONI BRISBANE, 12 MAY 2022

Application to deal with contraventions involving dismissal – application dismissed pursuant to s.587.

1. This matter involved an application made by Ms Taylah Collins (the Applicant) under section 365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal. The respondent is Jones & Daughters Pty Ltd T/A Hotel Radnor (the Respondent).

1. The Respondent objects to the application on the ground that the Applicant has not been dismissed by the Respondent. The Respondent submits that the Applicant resigned from her employment voluntarily, during a shift when she said “I quit, you can have two weeks notice if you like” before collecting her belongings and leaving her workplace.

1. The Respondent declined to participate in a conciliation conference and the matter was referred to me for arbitration to determine whether the Applicant had been dismissed.

1. Correspondence was sent to the parties on 20 April 2022 notifying them of a hearing and providing specific directions to each party. This was sent to the Applicant by email. The Applicant was directed to provide written materials in response to the Respondent’s objection by 6 May 2022. Nothing was received from the Applicant by this date.

1. A follow up letter was emailed to the Applicant on 9 May 2022 regarding her failure to comply with the Fair Work Commission’s direction and directing that her materials be filed and served on the Respondent by 4:00pm on 11 May 2022. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

1. To date, the Applicant 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.

(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 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. Pursuant to s.587(3)(a), this application to deal with contraventions involving dismissal is dismissed.

DEPUTY PRESIDENT

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