Bianca Shaina Baltazar v Whole Family Health Pty Ltd Summary

[2022] FWC 1294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Bianca Shaina Baltazar
v

Whole Family Health Pty Ltd

(C2022/1729)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 MAY 2022

Application to deal with an unlawful termination dispute

Bianca Shaina Baltazar was employed by Whole Family Health Pty Ltd until they were dismissed on the 1^st of March 2022.

On the 15^th of March 2022, the applicant made an application to deal with an Unlawful Termination Dispute under s.773 of the Fair Work Act 2009.

The respondent had raised an objection to this application, on the basis that they were a national system employer.
On the 11^th of May 2022, correspondence was sent to the applicant in relation to this issue and were required to respond by 5:00pm the 18^th of May 2022. No response was received.
On the 19^th of May 2022, further correspondence was sent to the applicant directing them to provide a response by 5:00pm on the 23^rd of May 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Bianca Shaina Baltazar has not responded to the jurisdictional objections raised by the respondent or any further correspondence sent by my Chambers in writing.

Section 587 of the Act provides:

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the 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).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bianca Shaina Baltazar filed an application under the Fair Work Act 2009, seeking to have her termination of employment by Whole Family Health Pty Ltd reviewed. The applicant was dismissed on 1 March 2022, and subsequently lodged an application on 15 March 2022 to contest the legality of her dismissal. The respondent objected to the application on jurisdictional grounds, asserting that they were a national system employer, which meant the matter should be heard by a different tribunal. Despite being notified of the jurisdictional objection and required to respond, the applicant failed to address the issue or engage in further communication with the Commission. The Vice President, Catanzariti, dismissed the application for want of prosecution, citing the applicant's failure to respond to jurisdictional objections and correspondence from the Commission.

The legal issues that the Vice President was required to address involved determining whether the Commission had jurisdiction to hear the application and whether the application could be dismissed for want of prosecution. The jurisdictional question centred on whether the respondent, as a national system employer, was exempt from the Commission's jurisdiction under the Fair Work Act 2009. Additionally, the Vice President had to consider whether the application could be dismissed under section 587 of the Act due to the applicant's failure to respond to jurisdictional objections and correspondence.

The Vice President found that the application was not made in accordance with the Act, as the respondent was a national system employer, which placed the matter outside the jurisdiction of the Fair Work Commission. Furthermore, the Vice President noted that the applicant had failed to respond to jurisdictional objections or further correspondence from the Commission, which warranted the dismissal of the application. The Vice President relied on section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if the application is not made in accordance with the Act. The Vice President concluded that the application should be dismissed for want of prosecution.

The Fair Work Commission dismissed the application brought by Bianca Shaina Baltazar for want of prosecution. This decision was based on the jurisdictional objection raised by the respondent, which established that the Commission did not have jurisdiction to hear the matter, and the applicant's failure to respond to correspondence and jurisdictional objections. An order to that effect will issue with this decision.

Bianca Shaina Baltazar v Whole Family Health Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established