Wendy Dayle v Cater Care Australia

[2019] FWC 5005

[2019] FWC 5005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Dayle
v
Cater Care Australia
(U2019/5221)

VICE PRESIDENT CATANZARITI DARWIN, 18 JULY 2019

Application for an unfair dismissal remedy.

[1] Wendy Dayle was employed by Cater Care Australia (the Respondent) until she was dismissed on 16 April 2019.

[2] On 8 May 2019, Mrs Dayle made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), one day outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 11 June 2019, the Respondent filed an Employer’s Response (Form F3) raising a jurisdictional objections on the basis that Mrs Dayle’s application was made out of time.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent Mrs Dayle correspondence on 4 July 2019, requiring her to provide a statement in support of the necessary request for an extension of time in which to validly make her application. She was asked to provide this information by no later than 11 July 2019. However, no response was received.

[5] On 12 July 2019, my chambers sent further correspondence to Mrs Dayle, directing her to provide a response by 4:00 pm on 17 July 2019. She was advised that in the absence of a reply, her application may be dismissed.

[6] To date, Mrs Dayle has not responded to any of the Commission’s correspondence.

[7] 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.

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.”

[8] The words, “[w]ithout 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).

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

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