Jennifer Jarquin v IBG Taxation & Advisory Pty Ltd

[2025] FWC 2705

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jennifer Jarquin
v

IBG Taxation & Advisory Pty Ltd

(U2025/5055)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 SEPTEMBER 2025

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

On 23 April 2025, Mrs Jennifer Jarquin made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) against IBG Taxation & Advisory Pty Ltd.

IBG Taxation & Advisory Pty Ltd was placed into liquidation on 15 May 2025. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

“After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

On 25 June 2025 correspondence was sent to Mrs Jarquin about these matters and included the following invitation:

“Deputy President Easton is prepared to give you time to decide what to do about your application.
Could you please tell us by reply email by no later than 4:00pm on Thursday 3 July 2025:
- that you have made an application to a Court for leave/permission to continue your claim; OR
- that you want to discontinue your unfair dismissal application.”

Mrs Jarquin has not responded.

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]).

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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

To date Mrs Jarquin has not provided a response regarding the continuation of her application or taken any steps to pursue her claim.

For several weeks Mrs Jarquin has been on notice of a significant obstacle that most likely prevents her from continuing her case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing her application or mounting an argument as to how her claim can lawfully continue, Mrs Jarquin has expressed her disappointment and not engaged any further with the Commission.

In these circumstances I am satisfied that the facility under s .587 can and should be engaged to dismiss Mrs Jarquin’s application for want of prosecution, and make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Jennifer Jarquin on 23 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jennifer Jarquin filed an unfair dismissal claim against IBG Taxation & Advisory Pty Ltd on 23 April 2025, seeking relief under section 394 of the Fair Work Act 2009. The respondent company was placed into liquidation on 15 May 2025. As a result, the applicant was notified on 25 June 2025 that any further action against the company would require leave of the Court, in accordance with section 500(2) of the Corporations Act 2001. The applicant was invited to provide a response by 4:00 pm on 3 July 2025, but she failed to respond or engage further with the proceedings.

The key legal issue before the Fair Work Commission was whether the applicant's failure to respond to the notification about the liquidation and her subsequent inaction amounted to a lack of prosecution, justifying the dismissal of her claim under section 587 of the Fair Work Act 2009. The Commission considered the applicant's conduct, which demonstrated a lack of willingness to continue with the case despite being aware of the significant obstacle presented by the liquidation of the respondent company.

The Fair Work Commission found that the applicant's inaction warranted the dismissal of her claim for want of prosecution. The Deputy President concluded that the applicant had shown no intention to pursue her claim further and had not taken any steps to address the legal barrier presented by the liquidation of the respondent company. Consequently, the Commission exercised its discretion under section 587 of the Act to dismiss the application on its own initiative.

The Fair Work Commission ordered that the application for unfair dismissal brought by Jennifer Jarquin against IBG Taxation & Advisory Pty Ltd on 23 April 2025 be dismissed. The decision highlighted the importance of continued engagement with legal proceedings, particularly when significant changes occur that may affect the viability of a claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established