Katy Somchanmavong v South Western Sydney Hospital

[2025] FWC 1699

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Katy Somchanmavong
v

South Western Sydney Hospital

(U2025/3354)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JUNE 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 20 March 2025, Mr Katy Somchanmavong made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Somchnmavong’s application raised a concern about whether his former employer was a National System Employer.

Commission staff tried to contact Mr Somchanmavong on 24 March, 25 March, 7 April and 13 May 2025 about this concern. Mr Somchanmavong has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. 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]).

I am satisfied that Mr Somchanmavong has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Somchanmavong’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Katy Somchanmavong on 20 March 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Katy Somchanmavong applied to the Fair Work Commission under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy against her former employer, South Western Sydney Hospital. The application raised questions about whether the hospital was a National System Employer. The Commission had made multiple attempts to contact Ms Somchanmavong to address these concerns, but she did not respond to any of these communications.

The legal issue before the Commission was whether Ms Somchanmavong's failure to respond to the Commission's correspondence constituted a lack of willingness to pursue her application, justifying the dismissal of her case under section 587 of the Fair Work Act 2009. The Commission considered that if an applicant's conduct or omissions showed they were no longer willing to participate in their own case, the Commission was not required to continue with the application. The Commission concluded that Ms Somchanmavong had had ample opportunity to present her case but had failed to respond to multiple communications from the Commission. The Deputy President was satisfied that Ms Somchanmavong had not shown any willingness to pursue her case, and therefore the application could be dismissed under section 587.

The Fair Work Commission dismissed the application under section 394 of the Fair Work Act 2009, finding that Ms Somchanmavong had not responded to multiple communications from the Commission and had therefore shown a lack of willingness to pursue her case. The Commission considered that the facility under section 587 could and should be engaged to dismiss the application. The Deputy President made an order dismissing Ms Somchanmavong's application for an unfair dismissal remedy.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established