Taylor Wyard v Little Triumphs Pty Ltd ATF the Michelle Keen Family Trust T/A Little Triumphs Early Education Centre and Oosh

[2021] FWC 5941

[2021] FWC 5941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taylor Wyard
v
Little Triumphs Pty Ltd ATF The Michelle Keen Family Trust T/A Little Triumphs Early Education Centre and OOSH
(U2021/4654)

COMMISSIONER P RYAN SYDNEY, 16 SEPTEMBER 2021

Application for an unfair dismissal remedy

Background

[1] Ms Taylor Wyard (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act).

[2] By the Application, the Applicant alleges she was unfairly dismissed from her employment with Little Triumphs Early Education Centre and OOSH (Respondent) on 15 May 2021.

[3] The matter was listed for a case management and directions hearing on 12 August 2021. This was adjourned at the request of the Applicant due to unavailability.

[4] The matter was then listed for 17 August 2021. Following this hearing, directions were issued to parties with respect to the filing of witness statements, documentary materials and an outline of submissions.

[5] Pursuant to the directions issued, the Applicant was required to file all materials in support of her application for an unfair dismissal remedy by 4:00pm on Friday, 3 September 2021. The Applicant did not file any materials.

[6] On 6 September 2021, my chambers sent correspondence to the parties advising that that Applicant had not filed any materials in accordance with the directions and that the matter will be listed for an urgent case management/directions hearing on 7 September 2021.

[7] The case management/directions hearing did not go ahead on 7 September, as the Applicant failed to attend without notice to the Commission. My chambers attempted to contact the Applicant by telephone on three occasions but was unsuccessful.

[8] On 7 September 2021, my chambers sent correspondence to the Applicant requesting an explanation for her non-attendance at the case management conference/hearing and her failure to file any materials in support of her application by 4:00pm on 9 September 2021. The Applicant was advised that in the absence of a response, the Application may be dismissed.

[9] The Applicant did not respond.

Legislative Provisions

[10] Section 587 of the FW Act provides as follows:

“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.”

[11] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

[12] Taking into consideration the Applicant’s failure to file materials in support of the Application, her failure to attend a casemanagement/directions hearing before the Commission, and her failure to respond to correspondence requesting an explanation for that, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

[13] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

[14] The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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