s.739 - Application to deal with a dispute in relation to flexible working arrangements

Alleged dispute about any matters arising under the modern award and the NES - application dismissed

[1] On 2 November 2025, Ms Sharitah Namatovu (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act 2009 (FW Act), being an application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure under the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). The Respondent to the Application is Truelink Community Services Pty Ltd (the Respondent), a registered NDIS Service Provider.

[2] The Applicant is employed by the Respondent as a Disability Support Worker.

[3] The Applicant has raised various concerns, including relating to her being removed from caring for a particular client, allegedly at the client's request, and the subsequent roster changes made by the Respondent as a result of this changed circumstance. The client is referred to in this decision as "Ms L".

[4] A preliminary Telephone Conference was conducted in this matter on Friday, 28 November 2025.

[5] At this Telephone Conference, it was agreed that the Respondent would arrange for an independent third party to contact Ms L - an individual with an intellectual disability - by Wednesday, 3 December 2025, to seek Ms L's views in relation to the removal of the Applicant as her carer. If the Respondent was unable to arrange for an appropriate independent third party to meet with Ms L to seek her views, my Chambers would arrange a virtual meeting between Ms L and myself, to seek Ms L's views.

[6] The Applicant was directed not to contact Ms L throughout this period.

[7] The matter was scheduled for a Report Back Conference by telephone, to take place on Monday, 8 December 2025 to discuss Ms L's views with the Applicant and to further conciliate the dispute.

[8] On Monday, 1 December 2025, the Applicant provided to my Chambers, two audio recordings of a conversation that she had had with Ms L since the Commission Conference. I note that the Applicant's support person and partner was also in attendance. On this recording, the Applicant asked Ms L about the request that she no longer be her carer, and asked Ms L "did you say [that] because you were upset or its true you don't want me back?" She repeatedly asked Ms L to "be honest". The Applicant's partner also questioned Ms L, asking whether she wanted the Applicant to be her carer, and made a comment to Ms L that "[the Respondent] was trying to push [the Applicant] out". The Applicant followed this statement with a comment to Ms L that "[the Respondent] just wanted to use you to get rid of me".

[9] The Respondent's representative wrote to my Chambers on 1 December 2025, objecting to the Applicant's actions and stating that the recordings are evidence of the Applicant engaging in misconduct.

[10] Both parties filed additional correspondence in relation to the Applicant's audio recordings, which I have taken into account.

[11] However, the submissions of the Applicant in relation to the audio recordings do not change the fact that the Applicant raised the issues of this dispute with Ms L, in direct contravention of a direction of the Commission.

[12] I do not accept the Applicant's explanation of this incident, which was circulated to me via an email exchange between the parties, where the Applicant alleges that she was at the facility to visit another client. If the Applicant had simply bumped into Ms L whilst visiting the facility, one would have thought, based on the directions of the Commission, that the conversation would have been generic in nature and not included the issues pertaining to this dispute. Even if Ms L had raised the issue directly with the Applicant, the Applicant should have advised Ms L that she was not permitted to talk to her about that issue. To then record a discussion where the Applicant and her partner asked leading questions of Ms L was highly undesirable. It would appear to me that the Applicant showed an abject disregard for the Commission and its processes in relation to the discussion that she had with Ms L.

[13] This behaviour is even more extraordinary considering it was the Applicant who asked for a third party to question Ms L. The Applicant demanded to know the name of this third party to ensure that they were independent and were not connected to the Respondent. To then deliberately undermine this agreed process and a direction of the Commission is an act which cannot be condoned.

(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:

• [15] 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.[1] Such a decision results in the extinguishment of a party's application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]

[16] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to comply with a direction of the Commission not to contact Ms L.

[17] After considering all of the circumstances in this matter, I am satisfied and find that it is appropriate to dismiss Ms Namatovu's application. Ms Namatovu, by recording a conversation with Ms L, after being directed not to have any contact with her, deliberately contravened a direction of the Commission.

[18] Accordingly, the application is dismissed pursuant to section 587 of the FW Act.

[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].

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