Kathy Birve v Caloundra State High School P & C Association

[2025] FWC 1195

[2025] FWC 1195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kathy Birve
v

Caloundra State High School P & C Association

(U2025/2607)

COMMISSIONER SIMPSON BRISBANE, 30 APRIL 2025

Application for relief from unfair dismissal – non national system employer – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success – applicant has failed to prosecute the application.

1. Mrs Kathy Birve (the Applicant) was employed by Caloundra State High School P & C Association (the Respondent) until she was dismissed on 17 February 2025. On 5 March 2025, the Applicant filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. On 4 April 2025, my Chambers sent an email to the Applicant notifying her that the Respondent had objected to her application on the basis that it was not a national system employer and therefore not within the jurisdiction of the Commission. The email stated:

“The above matter has been allocated to Commissioner Simpson. All further correspondence should be sent directly to the Chambers of Commissioner Simpson by email, copied to all parties in the matter.

The Commissioner has read the application and response submitted by the parties and notes that the Respondent is asserting that it is an entity not within the jurisdiction of the Commission – a non-National System Employer.

There is more information on the National Employment System on the Commission’s website below:

·   What is a national system employer? | Fair Work Commission

·   Who Australia’s national workplace relations system covers | Fair Work Commission

Mrs Birve, if you accept that is the case and therefore that you are excluded from the Commission’s jurisdiction, you should withdraw this application and file in the relevant State Commission. Alternatively, if wish to contest the objection, please advise Chambers in writing as soon as possible and the application will be listed for a directions/case management conference.”

1. On 22 April 2025, my Chambers followed up on a response from the Applicant. No response was received.

1. On 24 April 2025, my Chambers followed up on a response from the Applicant again and put her on notice that I was considering dismissing her application under s.587 if she did not respond. A text message was also sent to the Applicant’s provided mobile phone number alerting her that an email had been sent by my Chambers. The email read:

“I refer to the below correspondence following up a response from the Applicant.

If the Applicant does not provide to response by close of business Tuesday, 29 April 2025, the Commissioner foreshadows that he may exercise his power to dismiss the application under s.587 of the Act.”

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. 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. 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]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss the Applicant’s application. The Commission’s correspondence regarding whether the Applicant continued to press the application in light of the Respondent’s objection, provided with resources for the Applicant to inform herself on the issue. The Applicant does not appear to have accessed the resources or has not informed the Commission of her intention regarding the application.

1. The Applicant has also been on notice of the likely consequences for her application if she did not respond to the Commission’s inquiry and it is quite possible that she has abandoned her application. 

1. I have decided to dismiss Mrs Birve’s unfair dismissal applications and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Kathy Birve on 5 March 2025 is dismissed.

COMMISSIONER

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