s.365 - Application to deal with contraventions involving dismissal

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

• [1] On 23 April 2025, Ms Alisha Swan applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute involving dismissal from her employment with Alfasi Group (AG).

• [2] Ms Swan's application was lodged late. The Form F8 states that her dismissal was effective 1 April 2025. Therefore, the application should have been lodged on or before 22 April 2025. The application was lodged on 23 April 2025. Therefore, the application is 1 day out of time.

• [3] I subsequently listed the matter for a case management conference/direction hearing via Microsoft Teams on 23 June 2025 to explain and discuss next steps to the parties, as well as issue directions.

• [4] On the same day, I issued written directions and a notice of listing to parties regarding dates for the filing of material as well as the hearing date to determine whether to extend the time limit for Ms Swan to file her application, based on exceptional circumstances.

• [5] Ms Swan was directed to file her material by 5:00pm on 30 June 2025, with the hearing to take place on 10 July 2025 via Microsoft Teams.

• [6] On 30 June 2025, Ms Swan did not file her material in accordance with the issued directions.

• [7] On 1 July 2025 at 9:33am, as Ms Swan did not comply with my directions, my Associate sent the following email to the parties:

As per the directions issued by Commissioner Durham on 23 June 2025 (see attached), your material was due to be filed with the Commission, and served on the Respondent, by 30 June 2025.

The Commission has not received any material from you**,** nor has it received a request for an extension.

Please advise by 4:00pm today, why your material has not been filed in accordance with the Commissioner's directions.

Failure to comply with these directions will result in the Commissioner making a decision based only on the material that has been provided. Should you choose not to respond, this may result in the matter being determined in your absence without further notice and a decision adverse to your interest may also be made.

Alternatively, if you do not wish to proceed with this application, please confirm that you wish to discontinue in order for the matter to be closed."

• [8] No response was received from Ms Swan regarding the above email.

• [9] On 2 July 2025, as no response was received from Ms Swan, my Associate attempted to contact Ms Swan at 9:28am by telephone however the call went unanswered and a voice mail was left requesting Ms Swan provide a response to the email sent to her.

• [10] On 3 July 2025, as no response was received from Ms Swan, my Associate sent the following email to her:

Reference is made to the above matter and previous email below.

Noting the attempts to contact you via email and telephone regarding your non-compliance of the Commissioner's Directions (attached), Chambers has still not received a response from you.

You have made no attempt to contact the Chambers of Commissioner Durham to explain the reasons for non-compliance regarding the Directions.

The Commissioner directs you to provide your reason, in writing, for failing to comply with Directions by close of business today, 3 July 2023. If no explanation is received from you, the Commissioner will give consideration to dismissing your application for reason of want of prosecution under s.587 of the Fair Work Act 2009.

If you do not wish to continue with your application, please advise as such.'

• [11] To date, no correspondence or telephone contact has been received from Ms Swan.

• [12] Section 587 of the 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

(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:

• [13] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [14] I note 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.[1] 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.[2]

• [15] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Swan has failed to comply with directions and respond to various correspondence from Chambers, and provide any reasonable explanation to the Commission regarding this failure. Ms Swan has shown no willingness to prosecute her case and has taken no steps to do so.

• [16] In L. Sayer v Melsteel Pty Ltd,[3] 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.

• [17] In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant's application for want of prosecution pursuant to s.587(3)(a) of the Act.

• [18] An order to that effect will issue with this decision.

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

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

[3] [2011] FWAFB 7498 at [19].

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