Trinity Kirkman v Gong Investments Pty Ltd

[2022] FWC 3177

[2022] FWC 3177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Trinity Kirkman
v

Gong Investments Pty Ltd

(U2022/10873)

VICE PRESIDENT CATANZARITI SYDNEY, 1 DECEMBER 2022

Application for an unfair dismissal remedy.

1. Trinity Kirkman (the applicant) was employed by Gong Investments Pty Ltd (the respondent) from September 2017 until she was dismissed on the 12^th of October 2022.

1. On the 13^th of November 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. According to the respondent’s F3 – Employer’s Response Form, the application was lodged 25 days out of time.
   
   

2. On the 18^th of November 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 23^rd of November 2022.
   
   

3. On the 24^th of November 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 28^th of November 2022. She was advised that in the absence of a reply, her application may be dismissed.

1. To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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), 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.

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. An order to that effect will issue with this decision.

VICE PRESIDENT

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