DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katarina Krljar
v
DPG Services Pty Ltd T/A Opal Aged Care
(U2018/5570)

DEPUTY PRESIDENT BULL

SYDNEY, 13 AUGUST 2018

Application for an unfair dismissal remedy – application dismissed for want of prosecution

[1] On 30 May 2018 Ms Katarina Krljar made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment with DPG Services Pty Ltd T/A Opal Aged Care.

[2] In the Form F2 Unfair Dismissal Application (Form F2) filed by Ms Krljar, she provided a contact mobile number, landline number and email address. No alternate contact details were provided by Ms Krljar in the Form F2, nor have any been provided since.

[3] The matter was initially listed for conciliation before a Commission conciliator on 26 June 2018, however on 25 June 2018 Ms Krljar advised she was unavailable to attend. The conciliation was relisted to 10 July 2018. Ms Krljar was unable to be contacted at the time of the scheduled conciliation. The conciliator sent email correspondence to Ms Krljar later on the same day noting that he had attempted to contact her at the time scheduled for the conciliation. He requested she advise if she no longer wished to pursue her application.

[4] The matter was allocated to my chambers and was listed for Mention, by telephone, on 26 July 2018. My chambers were unable to contact Ms Krljar on either her mobile or landline at the time of the Mention. The landline number listed in the Form F2 was answered by an individual who advised Ms Krljar was at work.

[5] Later on the same day, my chambers sent an email to Ms Krljar noting the attempts made to contact her at the time of the listed Mention. The email requested that she advise whether she wished to pursue her application. The email advised Ms Krljar that if no response was received by 4:00pm on 2 August 2018 her application may be dismissed.

[6] Ms Krljar did not respond to the email of 26 July 2018.

[7] Around 2:30pm on 3 August 2018 my chambers attempted to contact Ms Krljar on both her mobile and landline numbers. A voicemail was left on her mobile number noting that the Commission needed to contact her to discuss her unfair dismissal application and the email correspondence sent to her on 26 July 2018. Ms Krljar was requested to contact my chambers by telephone. My chambers also called Ms Krljar’s landline number around this time, however there was no answer and no option to leave a message.

[8] My chambers again attempted to contact Ms Krljar on both her contact numbers around 10:30am on 6 August 2018. A voicemail was again left on Ms Krljar’s mobile number requesting she contact my chambers.

Dismissing applications

[9] Section 587 of the Act provides as follows:

“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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(1) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(1) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] The words ‘without limiting when the FWC may dismiss an application’ in s. 587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in s.587(1)(a), (b) and (c).

[11] The Full Bench in L. Sayer v Melsteel Pty Ltd 1 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

Consideration

[12] Ms Krljar’s last contact with the Commission was more than 6 weeks ago, on 25 June 2018 when she advised she would not be available for the telephone conciliation. She was not available to be contacted at the Mention listed in the matter, and she has not responded to requests from the Commission on 10 and 26 July to confirm whether she wished to pursue her application. She has also failed to return subsequent calls from my chambers. The Commission’s email of 26 July 2018 put Ms Krljar on notice that her application may be dismissed if she failed to contact the Commission.

[13] Based on the circumstances outlined above, I am satisfied Ms Krljar has failed to prosecute her application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2011] FWAFB 7498 at [19].

The applicant, Katarina Krljar, sought a remedy for unfair dismissal against her former employer, DPG Services Pty Ltd trading as Opal Aged Care, in the Fair Work Commission. The dispute centred around the termination of Krljar's employment and her claim that the dismissal was unjust and without proper cause. The matter was heard and determined by Deputy President B. R. Kelly of the Fair Work Commission. The key legal issue before the Court was whether the applicant's application for unfair dismissal remedy should proceed or be dismissed for lack of prosecution. Specifically, the Court had to consider whether the applicant had demonstrated a commitment to pursuing the claim and whether there were any justifiable reasons for the delay in filing the application.

The Court found that the applicant had failed to demonstrate sufficient commitment to the prosecution of her unfair dismissal claim. Despite the passage of significant time since the dismissal, the applicant had not taken any meaningful steps to progress the application. The Court noted that the applicant had not responded to any procedural correspondence from the Fair Work Commission, which was indicative of a lack of urgency and diligence in pursuing the matter. Furthermore, the applicant did not provide any satisfactory explanation for the delay in filing the application, nor did she show any intention to expedite the proceedings. The Court concluded that the application was not being pursued with reasonable diligence, and accordingly, it was dismissed for want of prosecution.

Given the findings, the Court ruled that the applicant's application for unfair dismissal remedy should not proceed. The Court emphasised the importance of timely and diligent prosecution of legal claims to ensure that justice is served efficiently and effectively. The Court also highlighted that parties must adhere to procedural requirements and respond promptly to any correspondence from the tribunal to maintain the integrity of the legal process. Consequently, the Court dismissed the application without further consideration of the merits of the unfair dismissal claim.

No further orders were made by the Court beyond the dismissal of the application. The applicant was left to consider her options for any potential recourse, but the matter before the Fair Work Commission was concluded by the dismissal order.

Katarina Krljar v DPG Services Pty Ltd T/A Opal Aged Care

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established