Jacinta Holzigal v Buma Australia Pty Ltd Summary

[2025] FWC 1060

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jacinta Holzigal
v

Buma Australia Pty Ltd

(U2025/1237)

DEPUTY PRESIDENT EASTON

SYDNEY, 15 APRIL 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 4 February 2025, Ms Jacinta Holzigal made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Ms Holzigal did not attend a telephone conciliation conference scheduled for 28 February 2025.

Commission staff tried to contact Ms Holzigal on 28 February, 4 March, 5 March and 14 March 2025 by telephone, email and SMS about whether she wants to continue her unfair dismissal claim. Ms Holzigal has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

I am satisfied that Ms Holzigal has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Holzigal’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Jacinta Holzigal on 4 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jacinta Holzigal, an employee, filed an unfair dismissal claim with the Fair Work Commission (FWC) under section 394 of the Fair Work Act 2009 (Cth), citing her dismissal by Buma Australia Pty Ltd. The FWC was tasked with determining whether the dismissal was unfair. The case was assigned to Deputy President Easton, who presided over the proceedings in Sydney on April 15, 2025. The key issue before the court was whether Ms Holzigal's application for an unfair dismissal remedy should be dismissed for want of prosecution, under section 587 of the Fair Work Act.

The legal issue that the court had to decide was whether Ms Holzigal's failure to attend a scheduled conciliation conference and her lack of response to multiple communications from the Commission indicated that she was no longer interested in pursuing her claim. The court considered the precedent set in Viavattene v Health Care Australia, where the Full Bench of the Fair Work Commission held that the Commission could dismiss an application for want of prosecution if the applicant's conduct or omissions showed they were no longer willing to participate in their own case. The court found that Ms Holzigal had been given ample opportunity to present her case and had not engaged with the Commission's attempts to contact her.

After reviewing the circumstances, the Deputy President concluded that Ms Holzigal's conduct demonstrated a lack of interest in continuing with her claim. Consequently, the court dismissed her application under section 587 of the Fair Work Act. The court made an order dismissing Ms Holzigal's application for an unfair dismissal remedy. The decision was based on the applicant's failure to engage with the proceedings, effectively demonstrating that she was no longer willing to participate in her own case.

Jacinta Holzigal v Buma Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established