s.394 - Unfair dismissal

Application for an unfair dismissal remedy - dismissal under s.587(1)(c) at the Commission's initiative for want of prosecution.

• [1] On 29 November 2024, Ms Tehgan Bathis made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] On 17 December 2024 Commission staff were advised that the parties had reached an in-principle agreement to resolve Ms Bathis' application.

• [3] Since then Ms Bathis has not discontinued her application or taken any steps to prosecute her case.

• [4] Commission staff attempted to contact Ms Bathis on 18 December 2024, and 1, 17 January, 24 and 27 February, and 5 March 2025 by telephone, SMS and email.

• [5] On 27 February 2025, Ms Bathis' representative contacted the Commission to advise they have been unable to contact Ms Bathis and on 17 March 2025, they filed a Form F54 ceasing to act for the applicant.

• [6] Since then Ms Bathis has not responded to the Commission's attempts to contact her.

• [7] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings for want of prosecution. If an applicant's conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

• [8] I am satisfied that Ms Bathis' has been on notice that her application could be dismissed under s.587, and has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application.

• [9] In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Bathis' application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Tehgan Bathis on 29 November 2024 is dismissed.

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