s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - lack of prosecution - application dismissed under section 587(3)(a)

• [1] On 24 November 2025, Dr Taylor Kline filed an application for a general protections remedy under section 365 of the Fair Work Act 2009.[1] She claimed that she had been dismissed by Pelagonia Investments Pty Ltd in contravention of Part 3-1 of the Act.

[2] Pelagonia raised two jurisdictional objections to the application (Objections). First, that Dr Kline resigned from her employment and was not dismissed within the meaning of section 386. Second, even were it to be found that Dr Kline had been dismissed, it would have taken place on 29 October 2025, with the result that her application was not filed within 21 days after the (alleged) dismissal, as required by section 366(1).

[3] On 15 January 2026 I made directions for the purposes of dealing with the Objections. They were sent to the parties by email. The email address that the Commission used for Dr Kline was that which she provided in her application. The same address was used for all subsequent email communications to Dr Kline.

[4] The directions required Pelagonia to file and serve its evidence and submissions in respect of the Objections by 29 January 2026. Dr Kline was directed to file her evidence and submissions on the Objections by 12 February 2026.

[5] In keeping with the directions, Pelagonia filed a witness statement and an outline of submissions on 29 January 2026. We received no material from Dr Kline in response to Pelagonia's material.

[6] On 13 February 2026, my Chambers sent an email to Dr Kline in these terms:

Directions were issued by Commissioner Sloan on 15 January 2026. A copy of those Directions is attached for your reference. The Directions required you to file your material by 12 February 2026. That material has not been received. Chambers is not aware of any request from you for a variation to the Commissioner's directions.

The Commissioner directs that you file your evidence and submissions as soon as possible and by no later than 4pm on 16 February 2026 along with reasons why the Commission should accept the material out of time."

[7] We did not receive a response from Dr Kline. Consequently, on 18 February 2026, my Chambers sent an email to the parties which stated:

We have received no response from Dr Kline to our email below.

If Dr Kline does not wish to proceed with the application, we invite her to inform us of that by 5.00pm today.

In the absence of any response from Dr Kline, the Commissioner will give consideration to dismissing the proceedings."

[8] On the same day, an SMS message was sent to Dr Kline's mobile telephone number in these terms:

"The Fair Work Commission has sent you an important email. Please check your email account. If you have not received an email recently, contact the Chambers of Commissioner Sloan on chambers.sloan.c@fwc.gov.au"

[9] We did not receive a response from Dr Kline.

[10] For an abundance of caution, on 20 February 2026 my Chambers sent an email Pelagonia's solicitors, McArdle Legal, which was copied to Dr Kline, enquiring whether they or their client had had any communication with Dr Kline since I issued the directions. The same day, my Chambers received an email from McArdle Legal, which was copied to Dr Kline, confirming that there had been no such communications.

[11] On 23 February 2026, my Chambers sent a further email to the parties, which stated:

In light of the repeated failure of Dr Kline to respond to the Commission's correspondence, the Commissioner has formed the provisional view that:

1. Dr Kline does not intend to pursue her application; and

2. the Commissioner ought to act on his own initiative under section 587 of the Fair Work Act 2009 to dismiss the application.

If a party objects to the Commissioner's provisional view, they are to inform Chambers of the basis of the objection by 12.00 noon on 24 February 2026."

[12] On the same day, my Chambers received an email from McArdle Legal, stating that Pelagonia did not object to my provisional view. We received no response from Dr Kline.

• [13] Section 587 confers power on the Commission to dismiss proceedings. That power may be exercised by the Commission on its own initiative or on application.[2] It is available where an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings that they chose to commence.[3]

[14] I am satisfied that Dr Kline has demonstrated that she does not intend to participate in her application. I am also satisfied that it is appropriate to exercise the power under section 587 on my own initiative.

[15] I order that Dr Kline's application for the Commission to deal with a dismissal dispute made on 24 November 2025 and assigned matter number C2025/11885 be dismissed.

[1] All legislative provisions referred to in this decision are references to provisions of the Fair Work Act 2009.

[2] Section 587(3)

[3] Peter Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]

Printed by authority of the Commonwealth Government Printer