[2011] FWA 4812

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Lesley Morton
Peregrine Corporation Pty Ltd T/A On The Run



[1] This decision arises from an application by Lesley Morton (the applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The employer is identified in the application as Peregrine T/As On the Run however the employer’s response to the application indicates that the legal name of the employer is Shahin Enterprises Pty Ltd, part of the Peregrine Corporation.

[2] The matter was listed on 11 July 2011 for a hearing in relation to a jurisdictional objection by the respondent that the applicant had resigned her employment and there was no dismissal at the initiative of the employer. There was no appearance by the applicant and no advice had been received from Ms Morton prior to the hearing that there was any difficulty in attending. My office attempted to contact the applicant when she failed to attend, to no avail.

[3] Mr Clarke, on behalf of the respondent, has given notice to the applicant and the Tribunal that it would seek to have the application dismissed as frivolous and vexatious pursuant to s.587(1)(b) of the Act. Section 587 is in the following terms:

[4] The grounds in support of dismissing the unfair dismissal application as frivolous and vexatious are that the applicant’s claim is without merit and that she had been dilatory in pursuing her claim. This included failing to take steps to amend the name of the employer on the application when directed to do so by the Tribunal, failing to notify the Tribunal of a change of address or taking any steps to actively pursue the application. This has resulted in the process being unnecessarily protracted, with some four months elapsing between the conciliation conference and subsequent contact with the applicant, which I note, was initiated by the Tribunal.

[5] In addition, the applicant did not comply with directions issued on 20 April 2011 to file an outline of submissions, witness statements and other documentary material relied upon.

[6] On 11 July I indicated to the respondent that I was satisfied that the applicant had been advised of the details of the hearing and that there was a prima facie case to dismiss the application given the applicant’s failure to actively pursue her application, comply with the Tribunal’s directions or attend the hearing.

[7] Having reached this view it was appropriate that the applicant be advised of it and be given an opportunity to argue that the Tribunal should not dismiss the application.1 To this end I scheduled a phone conference of the parties for 22 July 2011 to advise the applicant of these circumstances and set a date to hear from her in relation to the dismissal of her application. The Notice of Listing was sent to the applicant’s last known address with an accompanying letter which set out the purpose of the phone conference; made it clear that it was my intention to dismiss the application unless she could provide sound reasons for not doing so and advising that if she did not make herself available for the phone conference without good reason I would dismiss the application without further notice.

[8] At the allotted time for the conference, and again 10 minutes later the applicant was rung on her mobile phone. She failed to respond to the calls, and a recorded message advised that the mobile service was currently unavailable.

[9] In relation to the respondent’s s.587 application, it has been held that the dismissal of an application on the grounds that it is frivolous or vexatious requires an inquiry directed primarily to the merits of the application.2 As the applicant has not filed any material in support of her claim I am unable to make any findings on the merits, although on the respondent’s version of events it appears that a dismissal did take place, albeit in the period of notice provided by the applicant upon her resignation some three or four days earlier.

[10] In these circumstances it is not appropriate that the application be dismissed pursuant to s.587(1)(b) of the Act. It may be, as Commissioner Hampton commented in Steadman v The SA Potato Company Pty Ltd,3 that the failure to adduce evidence in support of an application gives rise to a finding that the application has no reasonable prospects of success in accordance with s.587(1)(c) of the Act.

[11] In any event, as the introductory words in s.587(1) indicate, the circumstances in which Fair Work Australia may dismiss an application are not limited to those matters in s.587 of the Act. I am satisfied that the Tribunal has taken appropriate steps to inform the applicant of its attitude to her application and the consequences of failing to make herself available for the phone conference. As a matter of fairness to the respondent I consider that it is appropriate that the matter be brought to an end. I therefore order that the applicant’s s.394 application be dismissed.



Mr R Clark from Ralph Clark Consultant on behalf of Peregrine Corporation Pty Ltd

Hearing details:



1 Carter v The Hanna Group Pty Ltd, [2010] FWA 31 at paragraph [6]

2 Gorman v Australia Post [2010] FWAFB 9413 at paragraph [13]

3 [2011] FWA 1300, at paragraph [32]

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