Julianne Young v Maitland City Council

[2024] FWC 3124

[2024] FWC 3124

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julianne Young
v

Maitland City Council

(U2024/8056)

DEPUTY PRESIDENT EASTON SYDNEY, 12 NOVEMBER 2024

Application for an unfair dismissal remedy – applicant’s conduct or omissions show that they are no longer willing to participate in their own case - application dismissed under s.587(3).

1. On 11 July 2024 Ms Julianne Young made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Young’s application should be dismissed for want of prosecution.

1. Ms Young advised in the Form F2 Unfair Dismissal Application that she was employed by Maitland City Council.  On the information provided by Ms Young, she is a Local Government employee in New South Wales and is not entitled to make an unfair dismissal claim because she was not employed by a National System Employer.

1. Commission staff have tried to contact Ms Young on the following dates:

·   25 July 2024  by telephone and letter;

·   5 September 2024 by telephone.

1. Commission staff sought further information from Ms Young about whether Maitland City Council is national system employer.

1. Ms Young responded, however did not provide any additional relevant information regarding whether she is a local government employee in New South Wales and said she would respond to the Commission after seeking advice.

1. Ms Young has been on notice of the likely consequences if she does not provide further information that supports her eligibility to make the application.

1. To date Ms Young has not provided any further information that supports her eligibility to make the application.

1. 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.”

1. 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. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. 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).

1. On 25 September 2024 Ms Young was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).  No response was received.

1. A telephone call was made to Ms Young on 9 October 2024, however Ms Young did not provide any additional relevant information regarding whether she is a local government employee.

1. I am satisfied that Ms Young has demonstrated that she does not intend to prosecute her application. Ms Young has not responded to whether she is a National System employee.

1. I am also satisfied that Ms Young’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss her application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order dismissing Ms Young’s application (PR781192).

DEPUTY PRESIDENT

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