Amber Saggers-Nepe v BHP, Newman VFRS Summary

[2025] FWC 628

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Amber Saggers-Nepe
v

BHP, Newman VFRS

(U2024/14067)

DEPUTY PRESIDENT EASTON

SYDNEY, 28 FEBRUARY 2025

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

On 25 November 2024, Miss Amber Saggers-Nepe made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Miss Saggers-Nepe did not attend a scheduled telephone conciliation conference on 16 December 2024. Nor did she attend the second telephone conciliation conference that was scheduled for 16 January 2025.

Commission staff tried to contact Miss Saggers-Nepe on 16 January and 6 February 2025 by telephone, email and SMS about this concern. Ms Saggers-Nepe has not responded to the Commission’s correspondence since 12 December 2024.

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]).

I am satisfied that Miss Saggers-Nepe has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Miss Saggers-Nepe application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Miss Amber Saggers-Nepe on 25 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Amber Saggers-Nepe filed an unfair dismissal application against BHP, Newman VFRS, pursuant to section 394 of the Fair Work Act 2009, on 25 November 2024. Miss Saggers-Nepe did not attend the scheduled telephone conciliation conferences on 16 December 2024 and 16 January 2025. Despite multiple attempts by Commission staff to contact her via telephone, email, and SMS, she failed to respond since 12 December 2024. Given her lack of participation in the proceedings, the Fair Work Commission considered whether to dismiss the application under section 587 of the Act for want of prosecution.

The central legal issue before the Commission was whether Miss Saggers-Nepe's failure to attend the conciliation conferences and respond to communications constituted sufficient evidence to dismiss the application for want of prosecution. Section 587(1)(c) allows the Commission to dismiss an application if the applicant's conduct or omissions indicate they are no longer willing to participate in their own case. The Commission needed to determine if Miss Saggers-Nepe's actions demonstrated a lack of interest or willingness to continue with the proceedings.

Deputy President Easton concluded that Miss Saggers-Nepe's failure to attend the required conciliation conferences and her unresponsiveness to multiple attempts to contact her indicated she was no longer willing to participate in the case. The Deputy President found that the Commission had provided ample opportunity for Miss Saggers-Nepe to present her case, but her conduct suggested she was not interested in pursuing the application. Therefore, the Deputy President decided to exercise the power under section 587 to dismiss the application.

The Fair Work Commission ordered that Miss Amber Saggers-Nepe's unfair dismissal application made on 25 November 2024 be dismissed.

Amber Saggers-Nepe v BHP, Newman VFRS

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established