Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 18 June 2025, Ms Susitina Tali (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 made her application against two entities, being 'RS Components Pty Limited' and 'People2people Recruitment Pty Limited', claiming that they contravened various provisions of Part 3-1 of the FW Act by dismissing her on 17 June 2025.

• [2] In its Form F8A - Response to a general protections application involving dismissal, RS Components Pty Limited (the Respondent) raised a jurisdictional objection on the grounds that the Applicant was not an employee of RS Components Pty Limited. Relevantly, the Respondent submitted that:

"The Applicant was an assigned worker to RS Components ... through a labour hire agency; People2People ... from 13 March 2025 to 17 June 2025 (Assignment Period).

The assignment was governed by the agreed terms of business (dated 4 March 2025) (the Terms of Business) between [RS Components] and [People2People]. For the avoidance of doubt, the Applicant had no contract of employment with the [RS Components] at any time during the Assignment Period, or at any other time."

• [3] Prior to a Directions Conference being held in this matter, the Applicant filed a Form F50 Notice of Discontinuance only in relation to People2people Recruitment Pty Limited, asking that People2people Recruitment Pty Limited be removed from the file in accordance with a settlement agreement.

• [4] In further correspondence to Chambers, the Applicant confirmed that she sought to remove People2people Recruitment Pty Limited from the file but wished to proceed against the Respondent.

• [5] On this basis, the Directions Conference by telephone scheduled for 28 July 2025 remained as listed. My Chambers issued correspondence to the Applicant and Respondent confirming that the Directions Conference was proceeding and required their attendance.

• [6] The Directions Conference was scheduled to commence at 8.30am AEST on Monday, 28 July 2025.

• [7] The Respondent dialled into the Directions Conference as directed on the Notice of Listing. The Applicant, however, failed to join.

• [8] My Associate made a number of attempts between 8.30am and 8.45am AEST to dial in the Applicant via her mobile number listed on the Form F8 application. However, the Applicant failed to answer.

• [9] An email was also sent from my Chambers at 8.33am AEST, asking that the Applicant urgently make herself available to attend the Conference.

• [10] In light of no contact from the Applicant, either by return call or email, the Directions Conference of 28 July 2025 was vacated.

• [11] That same date, a Non-Attendance Letter was issued to the Applicant requiring that she respond within 7 days to provide an explanation for her failure to attend the listed Directions Conference.

• [12] No response or contact has been received from the Applicant to date, either by telephone or in writing.

(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:

• [14] 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 relief from a beneficial statutory provision.[2]

• [15] 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 Directions Conference of 28 July 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.

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

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

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

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