Asyah Rabah v Nicole Bagatin

[2022] FWC 1784

[2022] FWC 1784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Asyah Rabah
v

Nicole Bagatin

(C2022/589)

COMMISSIONER P RYAN SYDNEY, 8 JULY 2022

Application to deal with contraventions involving dismissal

Background

1. Miss Asyah Rabah (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

1. By the Application, the Applicant alleges she was dismissed from her employment with Nicole Bagatin (Respondent) on 11 January 2022 in contravention of Part 3-1 of FW Act.

1. A conference before a Commission staff conciliator was listed for the matter on 31 March 2022. This conference was adjourned at the request of the Respondent.

1. The conference was then listed for 2 June 2022. The Applicant advised via email that she was unable to attend the conference due to work commitments, but her adjournment request was denied. The Applicant failed to attend without notice to the Commission or the Respondent and was unable to be contacted.

1. The conference was then listed for 23 June 2022. This conference did not go ahead as the Applicant failed to attend without notice to the Commission or the Respondent. The Applicant was contacted and advised she could not attend until later that day. The conference did not proceed.

1. On 23 June 2022, the matter was allocated to my chambers.

1. On 24 June 2022, my chambers sent correspondence to the Applicant requesting an explanation for the Applicant’s non-attendance at the conferences on 2 June and 23 June by 4:00pm on 28 June 2022. The correspondence also sought the Applicant’s position in relation to amending the legal name of the Respondent to 209 Rock Pty Ltd. The Applicant was advised that in the absence of a response, the Application may be dismissed. The Applicant did not respond.

1. Despite the lack of a response, I decided to provide the Applicant with a further opportunity to progress her application. The matter was then listed for conference on 7 July 2022.

1. The Applicant failed to attend the conference on 7 July 2022 and could not be contacted despite several attempts by my chambers. The Applicant was then directed to provide an explanation for her non-attendance by 4:00pm on 7 July 2022. The Applicant did not respond.

Relevant Legislative Provisions

1. Section 587 of the FW 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

1. Taking into consideration the Applicant’s failure to attend conferences before the Commission and her failure to respond to correspondence requesting explanations for that non-attendance, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Conclusion

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

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