Lisa Bartolo v Barwon Commercial Cleaning Pty Ltd

[2024] FWC 2161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lisa Bartolo
v

Barwon Commercial Cleaning Pty Ltd

(U2024/4545)

COMMISSIONER TRAN

MELBOURNE, 14 AUGUST 2024

Application for an unfair dismissal remedy – application dismissed under s 587

On 21 April 2024, Ms Bartolo applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Barwon Commercial Cleaning Pty Ltd (the Employer).

The Commission can dismiss an application on its own initiative under s 587 of the Act if an application is not made in accordance with the Act, it is frivolous or vexatious or if it has no reasonable prospects of success. But these grounds do not limit the Commission’s power to dismiss an application, and the Commission can also dismiss an application where

“an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.”[1]

I am satisfied that Ms Bartolo has demonstrated that she does not intend to prosecute her application. This is because she failed to attend a conciliation before a staff member, failed to attend a case management conference before me, failed to comply with my Directions and has not responded to multiple telephone calls and emails of the Commission. She has not provided any reasons for her non-compliance despite receiving ample communication and opportunity.

On 12 August 2024, my Chambers emailed Ms Bartolo. The email set out the above failures, warned her that her application was likely to be dismissed and provided her with a further opportunity to explain her failures and indicate that she wished to continue with her application. She did not do so.

Ms Bartolo has made this application but has neglected to participate in any aspect of it beyond filing the initial Form F2. I am satisfied that she has failed to prosecute her application and dismiss it.

Order

For the above reasons, I order that the application for an unfair dismissal remedy filed by Ms Lisa Bartolo on 21 April 2024 be dismissed under s 587 of the Act.

COMMISSIONER

[1] Viavattene v Health Care Australia[2013] FWCFB 2532 at [39].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lisa Bartolo sought an unfair dismissal remedy against Barwon Commercial Cleaning Pty Ltd, following the termination of her employment. The application was lodged under section 394 of the Fair Work Act 2009, and the case was heard by the Fair Work Commission. The central issue before the Commission was whether Ms Bartolo's application for an unfair dismissal remedy should be dismissed under section 587 of the Act, which allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, has no reasonable prospects of success, or if the applicant's conduct demonstrates an unwillingness to participate in the proceedings.

The Commission considered Ms Bartolo's conduct throughout the proceedings, noting her failure to attend a conciliation, a case management conference, and her non-compliance with directions issued by the Commission. Despite multiple attempts to contact her via email and telephone, Ms Bartolo did not provide any reasons for her non-compliance or indicate any intention to continue with her application. The Commission found that her conduct demonstrated a clear unwillingness to participate in the proceedings, leading to the conclusion that her application should be dismissed. The Commission also highlighted that Ms Bartolo had been given a final opportunity to explain her conduct and indicate her wish to continue with the application, which she failed to do.

Based on the findings, the Fair Work Commission dismissed Ms Bartolo's application for an unfair dismissal remedy. The decision was made under section 587 of the Fair Work Act, which empowers the Commission to dismiss applications where the applicant does not participate in the proceedings. The Commission's order was that the application filed by Ms Lisa Bartolo on 21 April 2024 be dismissed. This decision underscores the importance of an applicant's active participation in proceedings and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established