Leinara Isaia v Therapeutic Support Services Pty Ltd

[2025] FWC 97

[2025] FWC 97

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leinara Isaia
v

Therapeutic Support Services Pty Ltd

(U2024/12328)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 JANUARY 2025

Application for an unfair dismissal remedy – lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 16 October 2024, Ms Leinara Isaia made an unfair dismissal application (the Application) to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. Whilst the Respondent to the Application was named as Therapeutic Support Services Pty Ltd, on 24 October 2024 and 6 November 2024, the Commission was advised by the Department of Communities and Justice that the incorrect employer had been named and the correct name of Ms Isaia’s employer was Pegasus Community Care. 

1. On 18 November 2024, correspondence was sent to Ms Isaia in relation to the assertion that she was not an employee of the Respondent. Information was sought from Ms Isaia about whether she was directly employed by the Respondent.

1. On 29 November 2024, the Ms Isaia was directed to respond to the Commission’s correspondence and informed that if a response was not forthcoming by 5 December 2024 her application may be dismissed.

1. To date Ms Isaia has not provided any information in relation to whether she was employed by the Respondent. 

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. The words, “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s 587(1).

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. As noted, on 29 November 2024, Ms Isaia was specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c). Ms Isaia was also placed on notice on that same date, of the likely consequence for her Application if she did not respond. No response was received.

1. In the circumstances, I have decided to dismiss the Application on my own initiative pursuant to s.587(3)(a) of the Act for want of prosecution, it being evident that the Application has no prospects of success.

1. I have separately made an order to this effect (PR783194).

DEPUTY PRESIDENT

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