Hieu Luu v National Australia Bank Australia

[2025] FWC 37

[2025] FWC 37

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hieu Luu
v

National Australia Bank Australia

(U2024/14668)

COMMISSIONER YILMAZ MELBOURNE, 6 JANUARY 2025

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative

1. On 6 December 2024, the Applicant, Ms Hieu Luu (the Applicant) filed an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Luu alleged that she was unfairly dismissed by the Respondent, National Australia Bank, on 8 May 2024.This application was made more than 190 days late, well past its 21-day time limit, therefore the application was subject to an out of time hearing.

1. On 12 December 2024, I issued Directions to the parties requiring them to attend a hearing by video to determine whether to grant an extension of time for the application. The Applicant was directed to file her material by 5pm on Friday, 27 December 2024.

1. The Applicant failed to file her material. On 3 January 2025, one week past the 27 November 2024 deadline, I issued a warning via email to Ms Luu relating to her non-compliance with my directions to file her materials. A new deadline of 9am on Monday, 6 January 2025 was set for Ms Luu to file and serve her materials.

1. Ms Luu failed to file her materials in accordance with the new deadline. On Monday 6 January 2025, my Chambers wrote to Ms Luu advising that, should she fail to provide reasons as to her non-compliance with the Directions by 2pm, her application would be dismissed.

The Legislation

1. Section 587 of the Act concerns the power of the Commission to dismiss an application for a remedy for contraventions of part 3-1 of the Act: 

“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. Having considered Ms Luu’s failure to comply with the Directions or to respond to the Commission’s emails, I am satisfied that her application should be dismissed for want of prosecution.

1. At s.587 of the Act, the words “without limiting when the FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that are not contained in ss. 587(1)(a), (b), (c). The Commission may dismiss on its own motion if it considers that the matter cannot be prosecuted, and the Applicant does not comply with directions or engage with the Commission. I am also satisfied that through the attempts to contact her, Ms Luu was on notice of the risk that her application may be dismissed if she did not engage with the Commission.

1. On this basis, the application is dismissed for failure to comply with the Commission’s directions or to respond to the attempts to contact her. Due to her failure to engage with the Commission, Ms Luu’s application cannot be prosecuted. Therefore, pursuant to s.587 of the Act, the application is dismissed for want of prosecution.

COMMISSIONER

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