Fair Work Act 2009

s 365 - General protections

General protections application involving dismissal - section 587 - application dismissed.

• [1] On Wednesday 12 March 2025, Ms Claire Archibald applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) alleging that TASSK Pty Ltd had dismissed her in contravention of Part 3-1 of the Act. TASSK object to the application; it says that Ms Archibald was not dismissed.

• [2] I conducted a case management conference on Thursday 17 April 2025. Ms Archibald did not attend the case management conference. I subsequently listed the matter for arbitration to determine the issue of whether Ms Archibald was dismissed and issued directions to the parties for the filing of material.

• [3] Ms Archibald was directed to file her materials by 12:00pm AWST, Tuesday 6 March 2025. She did not comply with this direction. My Chambers wrote to Ms Archibald on Friday 9 May 2025 advising that the Commission had not received any materials from her and that the material must be provided by Monday 12 May 2025 along with a reason for the delay.

• [4] Ms Archibald did not file any material or give any reason for the delay.

• [5] On Thursday 15 May 2025, my Chambers wrote to Ms Archibald again, informing her that in the absence of any material from her, I was considering dismissing her application under section 587 of the Act on the basis that the application has no reasonable prospects of success.

• [6] The correspondence directed Ms Archibald to provide any submissions on whether the application should or should not be dismissed by 12:00pm AWST, Friday 16 May 2025.

• [7] Ms Archibald has not responded to any of the correspondence outlined above.

• [8] Section 587 of the Act states as follows:

(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

(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:

• [9] I refer the decision of Deputy President Easton in Bond v Carbridge Pty Ltd T/A Carbridge,[1] where at [11]-[16] of the decision the Deputy President summarised the relevant principles that apply to the exercise of the Commission's power under s 587. I respectfully agree and adopt the Deputy President's observations.

• [10] In this matter, I consider it appropriate to exercise my discretion to dismiss Ms Archibald's application in accordance with s 587(3)(c) of the Act. Section 587 should be engaged cautiously. However, Ms Archibald did not attend the case management conference and has not filed any material in support of her application despite three separate opportunities to do so. Without her participation or material, her case has no reasonable prospects of success.

• [11] I order that Ms Archibald's application under s 365 be dismissed.

[1] [2024] FWC 1302.

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