Tina Anne Gamble v Integrated Disability Support Services

[2023] FWC 82

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tina Anne Gamble
v

Integrated Disability Support Services

(U2022/10804)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 JANUARY 2023

Application for an unfair dismissal remedy.

Tina Anne Gamble (the applicant) lodged an application against Integrated Disability Support Services (the respondent) on the 10^th of November 2022.
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Integrated Disability Support Services Pty Ltd.
The respondent has also raised an objection stating that the applicant was not an employee.
On the 22^nd of December 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 29^th of December 2022. No response was received at this time.
Further correspondence was sent to the applicant on the 9^th of January 2023 and she was required to respond by the 5:00pm 11^th of January 2023. It was in this correspondence that the applicant was advised her application would be dismissed without any notice if no response was received.
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

Tina Anne Gamble has brought an action against Integrated Disability Support Services, seeking a remedy for unfair dismissal under the Fair Work Act 2009. The respondent has raised an objection, contending that the applicant was not an employee. The applicant lodged the application on the 10th of November 2022, but did not respond to correspondence sent by the Fair Work Commission in relation to a discrepancy in the respondent's legal business name. Further correspondence was sent to the applicant, advising that the application would be dismissed without notice if no response was received. To date, the applicant has not responded to any correspondence.

The court was required to determine whether the application should be dismissed for want of prosecution. The relevant section of the Act provides that the Commission may dismiss an application if the application is not made in accordance with the Act, or if the application is frivolous or vexatious, or if the application has no reasonable prospects of success. The court considered the provisions of the Act and the circumstances of this case, and determined that the application should be dismissed.

In reaching its decision, the court noted that 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). The court found that, in the circumstances of this case, it was appropriate to dismiss the application for want of prosecution, and made an order to that effect.

This decision serves as a reminder that it is important for applicants to respond to correspondence from the Fair Work Commission in a timely manner, and to ensure that their application is made in accordance with the Act. Failure to do so may result in the dismissal of the application.

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