Worker failed to provide explanation after several notices
A worker was recently faulted by the Fair Work Commission (FWC) after a serious blunder of naming the wrong company in her dismissal form. After the FWC issued requests to clarify the issue, she failed to explain the mix-up, which resulted in a failure to prosecute.
The worker, Caroline Rogers, was employed by Blue Care from 6 November 2023 until she was terminated on 25 September 2023.
On 2 October 2023, the worker made an application for a remedy for unfair dismissal. The legal business name that was stated by the employer in their response form was “Uniting Church in Australia Property Trust (Q.).”
To resolve this issue, the FWC sent a notice to the worker on 28 November 2023 regarding the said “legal business name discrepancy,” and she was required to respond by 6 December 2023.
No response was received at this time. The FWC once again sent notice to the worker and her representative on 7 December 2023, and she was required to respond by 5:00 pm on 12 December 2023.
Through this correspondence, the FWC reminded the worker that her application would be dismissed without any notice if no response was received.
When can the FWC dismiss applications?
In its decision, the FWC noted Section 587 of the Act, which provides the rules for dismissing applications.
It stated:
“(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.”
It added that the FWC may dismiss an application on its own initiative; or on application.
HRD previously reported about another applicant who wasn't responding to the Commission's notices and emails.
She was already contacted by telephone, after her failure to complete the form. She also did not appear at the directions hearing, nor did they respond to any calls that day.
In that case, the Commission said that it took "every appropriate measure to reach out" to the applicant, but to no avail.
Fair Work list: not exclusive
The FWC said that the words at the start of the provision, which said “without limiting when FWC may dismiss an application,” clearly establish that the jurisdiction of the Commission to dismiss an application “is not limited to the circumstances set out” in the list.
Since it’s not exclusive, the FWC has the power to decide when dismissal is appropriate. Thus, due to the worker’s failure to correspond and clarify why her employer’s name is different from the business name that the company provided, the FWC decided to dismiss the application for want of prosecution.
