Gabriella Solovastru v Pkburgerbiz Pty. Ltd

[2023] FWC 2671

[2023] FWC 2671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gabriella Solovastru
v

Pkburgerbiz Pty. Ltd.

(U2023/7634)

COMMISSIONER BISSETT MELBOURNE, 13 OCTOBER 2023

Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative

1. On 15 August 2023 Ms Gabriella Solovastru (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. In the Form F2 Unfair Dismissal application filed by the Applicant, the Applicant indicated that she was under 18 years of age.

1. On 12 September 2023 the Commission attempted to contact the Applicant via the nominated telephone number provided in the Form F2, to attain the contact details of a parent or legal guardian. The Applicant could not be reached, and a voicemail message was left requesting that she call back the Commission.

1. On 14 September 2023 the Commission again attempted to contact the Applicant via her nominated telephone number, to confirm the contact details of a parent or legal guardian. The Applicant could not be reached, and a voicemail message was left requesting that she call back the Commission with regards to her matter.

1. A conciliation conference was scheduled before a staff conciliator of the Commission on 15 September 2023. The conciliation could not take place as the Applicant was not contactable at the commencement of the conciliation.

1. The matter was subsequently referred to me for consideration.

1. On 21 September 2023 my Chambers sent correspondence to the Applicant. This correspondence advised the Applicant that I was considering dismissing her application, given that, as the Applicant was not contactable at the time of the conciliation conference, it appeared she no longer wished to pursue her application. This correspondence requested that the Applicant advise by 28 September 2023 whether she wished to continue with her application. The Applicant was further advised that a failure to reply to this correspondence may result in her application being dismissed without further correspondence. An SMS was also sent to the Applicant’s nominated telephone number advising that correspondence had been sent to her email address.

1. On 2 October 2023 my Chambers sent further correspondence to the Applicant. This correspondence advised that the Commission had not received any advice from the Applicant that she wished to pursue her application. This correspondence stated that if the Applicant does not confirm her intentions to continue with her application by 6 October 2023, then I would dismiss her application. An SMS was also sent to the Applicant’s nominated telephone number advising that correspondence had been sent to her email address.

1. To date, the Applicant has not provided any further correspondence to the Commission.

1. Section 587(1) 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 prospect of success.

1. Section 587 does not limit the circumstances in which the Commission can consider dismissing an application. In this matter, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s.587(1) of the FW Act. I do so as the Applicant has failed to engage with the Commission to confirm whether she intends to continue with her application, and I do not consider that she will do so in the future. The application is therefore dismissed.

COMMISSIONER

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