Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - failure to comply with Directions - Application dismissed

• [1] On 28 October 2024, Ms Meiyun Xue (Applicant) filed an application pursuant to s.392 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a application seeking remedy for an unfair dismissal (Application). The Respondent to the Application is Serco Australia Pty Ltd.

• [2] Direction [1] of the Directions issued on 11 December 2024 reads:

"[1] By 4.00PM AEDT on Monday, 23 December 2024, the Applicant is must file with the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in in support of her substantive unfair dismissal claim"

• [3] The Applicant has not complied with Direction [1].

• [4] A request for an extension of time in which to file materials was made by the Applicant on 20 December. That application was refused and the Applicant put on notice that the matter would be dismissed forthwith in the event of non-compliance with the Directions.

• [5] On 23 December 2024, the following email was sent to the Applicant (Show Cause Email):

The Deputy President does not grant the request for an extension for filing your materials.

The Directions in this matter were issued on 11 December 2024 (see attached). Parties do not have a right for legal representation or advice. Hence, a request based upon an absence of legal representation is not a reason for an extension to be granted.

Further, you have provided no information or evidence of steps taken to date to obtain legal representation, and did not contact Chambers until one business day before the due date of your materials to seek this extension.

Directions must be complied with or the proceedings will be dismissed. You therefore have until 4:00PM AEDT today to file your materials.

• [6] Chambers received no correspondence or other communication from the Applicant in relation to the Show Cause Email.

• [7] Section 587 of the Act reads:

(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:

• [8] In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:

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

• [9] As the Applicant has made no attempt to comply with Direction [1] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.

• [10] In dismissing the Applicant's Application, I find that the Applicant's non-compliance with Direction [1] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

• [11] Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

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