Jana Baalbaki v NAB

[2025] FWC 2259

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jana Baalbaki
v

NAB

(U2025/5719)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 AUGUST 2025

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

On 8 May 2025, Ms Jana Baalbaki made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The information provided in Ms Baalbaki’s application raised a concern about whether the application was filed within the 21 day time limit.

Commission staff tried to contact Ms Baalbaki on 21 May and 3 June 2025 about this concern by email and SMS. Ms Baalbaki 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 Baalbaki 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 Baalbaki’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Jana Baalbaki on 8 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jana Baalbaki lodged an application for unfair dismissal against her former employer, NAB, with the Fair Work Commission on 8 May 2025. The application raised concerns about whether it was filed within the required 21-day timeframe. The Commission attempted to contact Ms Baalbaki on 21 May and 3 June 2025 to address the concerns, but she did not respond to these communications. The legal issue at hand was whether Ms Baalbaki's failure to respond to the Commission's correspondence constituted a lack of willingness to pursue her case, thereby warranting dismissal under section 587 of the Fair Work Act 2009.

The court considered whether Ms Baalbaki's conduct or omissions demonstrated that she was no longer willing to participate in her own case. The Deputy President referenced Viavattene v Health Care Australia, which established that the Commission is not obligated to persist with an application if the applicant's conduct indicates a lack of interest in proceeding. Given that Ms Baalbaki had been given the opportunity to present her case on all relevant matters and had failed to respond to the Commission's attempts to contact her, it was concluded that she was no longer willing to pursue her application. Therefore, the court decided to dismiss the application under section 587.

In conclusion, the Fair Work Commission dismissed Ms Baalbaki's unfair dismissal application. The court found that her failure to respond to the Commission's correspondence demonstrated a lack of willingness to proceed with her case. Consequently, the application made on 8 May 2025 was dismissed in its entirety.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established