s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application dismissed

• [1] On 17 May 2024, Miss Kelly-Ann Manolas (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, Australian Ears And Hearing Care Pty Ltd (the Respondent) contravened various provisions of Part 3-1 of the FW Act by dismissing her on 26 April 2024.

• [2] In its Form F8A - Response to a general protections application involving dismissal, the Respondent raised jurisdictional objections which were dismissed by me in a decision issued on 13 February 2025.[1]

• [3] Further to my decision of 13 February 2025, the matter was scheduled for a s.365 Conciliation Conference by Telephone on Wednesday, 19 March 2025.

• [4] The Notice of Listing, which was issued to the parties on 20 February 2025, required that both parties write to Chambers confirming their appearances. The Applicant failed to contact or write to Chambers providing her appearance.

• [5] On 19 March 2025, my Chambers emailed the parties asking that they connect into the Conference line via the details provided in the Notice of Listing.

• [6] The Applicant failed to connect to the Conference line or otherwise contact Chambers on 19 March 2025.

• [7] On that same date, a 'Non-Attendance Letter' was issued to the Applicant, requiring that she write to Chambers within 7 days providing an explanation for her non-attendance and reasons why her application should not be dismissed.

• [8] No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

(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:

• [10] It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[2] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form relief from a beneficial statutory provision.[3]

• [11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact her in relation to the Conciliation Conference of 19 March 2025, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

• [12] In L. Sayer v Melsteel Pty Ltd,[4] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

• [13] After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Miss Manolas's application for failure to prosecute her case.

• [14] Accordingly, the application is dismissed pursuant to section 587 of the Act.

[1] [2025] FWC 318.

[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[3] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[4] [2011] FWAFB 7498 at [19].

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