Kelly Tanner v The Trustee for the Mueller Family Trust

[2025] FWC 36

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kelly Tanner
v

The Trustee For The Mueller Family Trust

(C2024/8072)

COMMISSIONER YILMAZ

MELBOURNE, 6 JANUARY 2025

Application to deal with contraventions involving dismissal – matter dismissed under s.587 at the Commission’s initiative

On 10 November 2024, the Applicant, Ms Kelly Tanner (Ms Tanner) filed an application with the Fair Work Commission (the Commission) for a remedy under s.365 of the Fair Work Act 2009 (the Act). Ms Tanner alleged that she was dismissed in contravention of Part 3-1 of the Act by the Respondent, The Trustee for the Mueller Family Trust (the Respondent) on 7 October 2024. The Respondent has raised a jurisdictional objection that the Applicant was not dismissed and that her application was filed out of time (the jurisdictional objections).

On 23 December 2024, I issued Directions to the parties requiring them to attend a hearing by video to determine the jurisdictional objections. The Applicant was directed to file her material by 5pm on Monday, 30 December 2024.

On 29 December 2024, the Applicant wrote to my chambers seeking an extension of time of 1 week to file her materials. On 31 December 2024, my Chambers wrote to the parties issuing amended directions. The amended directions required Ms Tanner to file her material by 5pm on 2 January 2025.

The Applicant failed to file her material. On 3 January 2024, I issued a warning email to Ms Tanner relating to her non-compliance with my directions to file her materials. A new deadline of 9am on Monday 6 January 2025 was set for Ms Tanner to file and serve her materials.

Ms Tanner failed to file her materials in accordance with the new deadline. On Monday 6 January 2025, my Chambers wrote to Ms Tanner advising that, should she fail to provide reasons as to her non-compliance with the Directions by 2pm, her application would be dismissed.

The Legislation

Section 587 of the Act concerns the power of the Commission to dismiss an application for a remedy for contraventions of part 3-1 of the Act:

“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.

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.
(2) 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.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

Having considered Ms Tanner’s failure to comply with the Directions or to respond to the Commission’s emails, I am satisfied that her application should be dismissed for want of prosecution.

At s.587 of the Act, the words “without limiting when the FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that are not contained in ss. 587(1)(a), (b), (c). The Commission may dismiss on its own motion if it considers that the matter cannot be prosecuted, and the Applicant does not comply with directions or engage with the Commission. I am also satisfied that through the attempts to contact her, Ms Tanner was on notice of the risk that her application may be dismissed if she did not engage with the Commission.

On this basis, the application is dismissed for failure to comply with the Commission’s directions or to respond to the attempts to contact her. Due to her failure to engage with the Commission, Ms Tanner’s application cannot be prosecuted. Therefore, pursuant to s.587 of the Act, the application is dismissed for want of prosecution.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ms Kelly Tanner sought a remedy for an alleged dismissal by The Trustee for the Mueller Family Trust. The Commission was asked to determine if the dismissal was contrary to the Fair Work Act 2009. The Respondent objected to the application on jurisdictional grounds, arguing that the Applicant had not been dismissed and that the application was filed out of time. The Applicant then sought an extension to file her materials but failed to comply with the subsequent directions. Despite attempts to contact the Applicant, she did not provide reasons for her non-compliance.

The central issue before the Commission was whether the application should be dismissed for want of prosecution under section 587 of the Fair Work Act. This section provides the Commission with the power to dismiss applications that are not made in accordance with the Act, are frivolous or vexatious, or have no reasonable prospects of success. The Commission also has the authority to dismiss applications on its own initiative if it considers that the matter cannot be prosecuted. The Commissioner needed to assess whether the Applicant's failure to comply with directions and engage with the Commission justified the dismissal of her application.

The Commissioner found that the Applicant's repeated failure to comply with directions and engage with the Commission justified the dismissal of her application. The Applicant had been given multiple opportunities to comply with the directions and respond to the Commission's attempts to contact her. Despite these efforts, the Applicant did not engage with the Commission, thereby failing to comply with the directions. Under section 587 of the Act, the Commission has the jurisdiction to dismiss applications on its own initiative if the matter cannot be prosecuted. The Commissioner concluded that the Applicant's failure to engage with the Commission and comply with the directions meant that her application could not be prosecuted.

The application was dismissed for failure to comply with the Commission's directions or to respond to the Commission's attempts to contact the Applicant. The Commissioner found that the Applicant had been on notice of the risk that her application might be dismissed if she did not engage with the Commission. The Commissioner was satisfied that the dismissal was justified under section 587 of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established