Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application dismissed pursuant to s.587

• [1] On 16 May 2025, Mrs Amy Helm (Mrs Helm) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging Karlah Care Pty Ltd (Karlah Care) contravened the general protection provisions of the FW Act by dismissing her due to her exercise of her workplace rights.

• [2] On 13 June 2025, Karlah Care filed a Form F8A - Response to a General Protections Application alleging that Mrs Helm was not dismissed by Karlah Care (Jurisdictional Objection).

• [3] On 24 June 2025, directions were issued to the Parties (Directions). Paragraph [3] of the Directions required Mrs Helm to file with the FWC and serve on Karlah Care by 4pm on Thursday 3 July 2025 an outline of submissions, any evidence on which she relied and copies of any authorities on which she relied in relation to the Jurisdictional Objections. The Directions stated that compliance with the Directions was mandatory and that a failure to comply may disadvantage the party concerned.

• [4] Mrs Helm failed to file any materials in accordance with the Directions or seek an extension to do so within the timeframes set out in the Directions. On 7 July 2025, Chambers wrote to Mrs Helm and informed her that she would need to apply for an extension to file her materials late. Mrs Helm was directed to provide reasons for her failure to file materials in accordance with the Directions by 8 July 2025. Mrs Helm was also directed to file the materials set out in the Directions under paragraph [3] 8 July 2025. Mrs Helm was informed that a failure to do so may result in the Application being dismissed.

• [5] Section 587 of the FW Act provides 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

(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:

• [6] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss dismissing an application made pursuant to section 365 per se.

• [7] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.

• [8] For example, in Mcleod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

• [9] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[2] (Tomas) in which she stated:

"[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter."

• [10] In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.

• [11] The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. The power to dismiss a substantive application should only be exercised cautiously and sparingly because ordering the dismissal of an application would result 'in the complete extinguishment of an applicant's right to have her application for relief orders under beneficial legislation, heard and determined according to law'.[3]

• [12] However, in all of the circumstances, I am satisfied that Mrs Helm was aware of what was required of her regarding compliance with the directions. Despite being given multiple opportunities to file her materials and assistance and guidance to do so Mrs Helm has failed to file any materials in support of her Application.

• [13] Due to the history of non-compliance, I am not satisfied that Mrs Helm is likely to comply with further directions of the FWC.

• [14] In the circumstances, and on balance, it is appropriate that the Application be dismissed for want of prosecution under section 587 of the Act.

• [15] An order[4] to this effect will issue with this Decision.

[1] [2014] FWC 2112.

[2] [2011] FWA 5458.

[3] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

[4] PR789085.

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