Jirapinya Liamyongyai v Site Group Pty Ltd
[2024] FWC 1786
•9 JULY 2024
| [2024] FWC 1786 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jirapinya Liamyongyai
v
Site Group Pty Ltd
(U2024/5497)
| DEPUTY PRESIDENT EASTON | SYDNEY, 9 JULY 2024 |
Application for an unfair dismissal remedy
On 15 May 2024, Ms Jirapinya Liamyongyai filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth). Ms Liamyongyai named Site Group Pty Ltd as her former employer.
Site Group Pty Ltd objected to the unfair dismissal application because it says Ms Liamyongyai was not a direct employee of theirs. Site Group Pty Ltd said that Ms Liamyongyai was a labour hire employee contracted to perform work.
On 20 June 2024 Commission staff sent correspondence to Ms Liamyongyai in relation to the correct Respondent and she was required to respond by 27 June 2024. An SMS was also sent to Ms Liamyongyai telling her that an important email had been sent. Ms Liamyongyai did not respond to this email.
Further correspondence was sent to Ms Liamyongyai on 1 July 2024 and she was required to respond by 5:00pm on 4 July 2024. Ms Liamyongyai was also advised that her application may be dismissed without further notice if she did not respond. An SMS was also sent to Ms Liamyongyai telling her that the Commission had sent an important email. Ms Liamyongyai did not respond to this correspondence.
To date, Ms Liamyongyai has not responded to any of the Commission’s attempts to contact her.
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.
Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
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]).
In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Liamyongyai’s application. The Commission’s query about the correct Respondent should have been easily resolved to allow Ms Liamyongyai’s claim to progress or be discontinued.
Ms Liamyongyai has also been on notice of the likely consequences for her application if she did not respond to the Commission’s inquiry. It is quite possible that she has abandoned her application.
For these reasons I have decided to dismiss Ms Liamyongyai’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.
I have separately made an order to this effect (PR776782).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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