Fair Work Act 2009

s 773 - Termination of employment

Application to deal with an unlawful termination dispute - dismissal under s 587 at the Commission's initiative

• [1] Ms Nicole Barwick (the Applicant) made an application under s 773 of the Fair Work Act 2009 (Cth) (the Act), on her understanding that she had been dismissed by Health Support Services (the Respondent). The Respondent objected to the application on the grounds that the Applicant's employment had not been terminated.

• [2] On 31 July 2025, a Notice of Listing was issued for a programming conference to be held on 14 August 2025. On 13 August 2025, Chambers was contacted by the State Solicitor's Office, who was acting on behalf of the Respondent, and informed that the Applicant had, tragically, passed away over the weekend of 9-10 August 2025.

• [3] In light of the Respondent's correspondence the listing was vacated, and directions were issued to the parties on 13 August 2025, that required the Respondent to file a statutory declaration or witness statement in respect of that which it had communicated to Chambers. The Applicant was copied to the correspondence in the event that her family had access to her email.

• [4] The Respondent filed a statutory declaration which set out the steps taken by it to locate the Applicant. Those steps had been taken in circumstances where the Respondent was aware that the Applicant had ongoing health issues and had attempted to contact the Applicant to confirm whether she was intending to work. The Respondent had received no response from the Applicant and therefore conducted two welfare checks after first having liaised with WA Police. Later in the day on 12 August 2025, the Applicant was located unresponsive in her home by officers of the Respondent, the Applicant having passed away.

• [5] In Stan v Frontline Australasia ('Stan'),[1] Deputy President Gostencnik considered whether another person could proceed with an application for relief from unfair dismissal pursuant to s 394 of the Act in circumstances where the applicant is deceased. The Deputy President expressed:

The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee. The Act does not confer a right to a remedy, but only a right to make an application and having it heard according to law. It is a right that is a bare and non-assignable right and generally is not one that is to be regarded as a proprietary right. The remedies of reinstatement, loss of pay orders or compensation that might be available do not follow simply because an applicant is successful in persuading the Commission that his or her dismissal was harsh, unjust or unreasonable. The remedies that might be granted are discretionary and the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement.[2]

• [6] In Rohrlach v L.M. Robertson & P.F. Robertson ('Rohrlach'),[3] Commissioner Simpson further summarised a number of observations of Deputy President Gostencnik relevant to the question of whether an application could survive where the applicant is deceased. The matters raised by the Deputy President can be put as follows:

(1) There is a requirement for evidence of legal authority to purport to continue the

(2) There is no rule in the Fair Work Commission Rules contemplating capacity to

continue proceedings in the event of death as is the case in the Federal Court rules;

(3) There is no express power or provision in the Fair Work Act (FW Act) to allow a

(4) The right under the FW Act to make an unfair dismissal remedy application is

personal to the dismissed employee and is non-assignable;

(5) The remedies available under the FW Act of compensation is intertwined with and

not severable from the discretionary considerations relating to an order for

(6) The personal and discretionary nature of the remedies that might have been

available had the application been successful make it unlikely that the right to

bring and maintain the application is something that can be assigned, transmitted,

devolved or passed to another person assuming such a power exists (although the

Deputy President found he did not need to determine this matter to finality);

(7) The Applicant could not be cross-examined with respect to disputed facts

supporting a conclusion that the application had no reasonable prospect of success

and the application was dismissed on that basis. [4]

• [7] In both Stan and Rohrlach, it was held that the application no longer had any reasonable prospect of success and should be dismissed under s 587(1)(c) of the Act.

• [8] When an applicant makes an application under s 773 of the Act, the applicant has applied to the Commission to deal with a dispute about the termination of her or his employment. If the Commission has jurisdiction to do so, it will deal with the dispute other than by arbitration as required by the Act. It is the usual course that the matter will be programmed for a private conference with a view to resolve the dispute. If the dispute remains unresolved after the conference and the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be unsuccessful, then the Commission must issue a certificate to that effect. Whether a certificate issues is dependent on the Commission's assessment. The certificate allows an applicant to pursue the dispute by way of an unlawful termination court application or to seek the consent of the respondent to have the Commission deal with the dispute by arbitration.

• [9] Whilst Stan and Rohrlach addressed circumstances where an applicant had passed away having made an unfair dismissal application, the guidance provided by those decisions is of assistance here.

• [10] It is evident that there is an absence of legal authority to continue the application. The Applicant was self-represented and there appears to be no avenue to identify who may have authority on her behalf. The Applicant was said to have no family in Western Australia and the Applicant had listed a work colleague as her emergency contact on her medical records.

• [11] The application itself requires the Commission, first, to establish whether it has jurisdiction to deal with the dispute - given the Respondent's objection that the employment of the Applicant had not been terminated. It is only then, if jurisdiction has been established, that the Commission can program the matter for conference to see if the dispute can be resolved. The requirement to conduct a private conference to ascertain whether the dispute can be resolved, strikes me as highly personal to those between whom the dispute exists. As was the case in Stan, it appears unlikely that the right to bring and pursue the application would constitute something that may be assigned, transmitted devolved or passed to another person - even assuming there is power to make such an order, which I am, at this point, unpersuaded that there is. Further, in the current circumstances it is decidedly unclear as to whom that other person may be.

• [12] I consider that, as the Applicant's untimely passing prevents the application from being either pursued or discontinued by another person, the application has no reasonable prospects of success. Accordingly, the application is dismissed under s 587(1)(c) of the Act. An Order[5] giving effect to this decision will issue concurrently.

[1] [2014] FWC 5457 ('Stan').

[2] Ibid [2014] FWC 5457 [7].

[3] [2018] FWC 2798.

[4] Ibid [4] citing Stan (n 1) [3]-[4], [7], [9], [15].

[5] PR790907.

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