Application by Tess Cardow Dal Broi

[2025] FWC 56

[2025] FWC 56

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.739—Dispute resolution

Application by Tess Cardow Dal Broi

(C2024/8399)

DEPUTY PRESIDENT BEAUMONT PERTH, 7 JANUARY 2025

Application to deal with a dispute – incomplete application – application is not made in accordance with this Act – application dismissed – s.587(1)(a).

1. On 25 November 2024, Mrs Tess Cardow Dal Broi made an application to deal with a dispute to the Fair Work Commission under s.739 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow, I am satisfied that Mrs Dal Broi’s application has not been made in accordance with the Act and that Ms Dal Broi has failed to prosecute her case. It is therefore appropriate to dismiss her application.

1. The application form filed by Mrs Dal Broi was incomplete as she had not answered questions 1.3 and 1.4.

1. Commission staff attempted to contact Mrs Dal Broi on the following dates:

   ·  27 November 2024 by telephone, SMS, and email;

   ·  29 November 2024 by SMS and email; and

   ·  5 December 2024 by email.

1. Mrs Dal Broi has been on notice since 27 November 2024 of the likely consequences of her application remaining incomplete.

1. On 28 November 2024, Client Services received a call from Mrs Dal Broi who detailed having been advised by the Commission to make the application in circumstances where she had resigned from her employment, and she was disputing having been underpaid by her previous employer.  Whilst Mrs Dal Broi had provided information in her application regarding Award coverage, she had not identified the relevant dispute resolution procedure or the clause to which her dispute pertained.  In the call Client Services informed Ms Dal Broi that she had four days to provide the requisite information, otherwise her application would likely be dismissed. 

1. On 29 November 2024 Mrs Dal Broi was informed by email that her application was incomplete and that if the requisite information was not provided by 2 December 2024, her case would likely be dismissed.  A further email was issued on 5 December 2024, in similarly terms albeit stating that if a response was not received by 9 December 2024, her application would be dismissed.

1. No response has been received from Mrs Dal Broi.

1. Section 587 of the Act provides as follows:

“587  Dismissing applications

(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

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(3)   The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.”

1. Mrs Dal Broi’s application was not made in accordance with the Act (per s.587(1)(a)) because the application was incomplete. Further, Mrs Dal Broi has not complied with a direction to file the requisite information. Section 587 confers a discretion on the Commission to dismiss the application.

1. I am satisfied that Mrs Dal Broi has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). Mrs Dal Broi has been given ample opportunity to rectify the deficiency in the application, however the Commission’s inquiries and warnings have been ignored.

1. I have decided to dismiss Mrs Dal Broi’s application to deal with a dispute using the power available under s.587(1)(a) and (c) and make the following order:

1. The application under s.739 of the Fair Work Act 2009 (Cth) made by Mrs Tess Cardow Dal Broi on 25 November 2024 is dismissed.

DEPUTY PRESIDENT

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