Lucy Fischer v Darling Downs Indigenous Health

[2024] FWC 3123

[2024] FWC 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lucy Fischer
v

Darling Downs Indigenous Health

(U2024/5106)

DEPUTY PRESIDENT EASTON SYDNEY, 12 NOVEMBER 2024

Application for an unfair dismissal remedy – applicant’s conduct or omissions show that they are no longer willing to participate in their own case - application dismissed under s.587(3).

1. On 6 May 2024 Ms Lucy Fischer made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Fischer’s application should be dismissed for want of prosecution.

1. Ms Fischer advised in the Form F2 Unfair Dismissal Application that she was employed by Darling Downs Indigenous Health.  On the information provided by Ms Young, she is a State Government employee in Queensland under Queensland Health.

1. A conciliation conference was scheduled on 3 July 2024 however Ms Fischer did not attend.

1. After multiple attempts to contact Ms Fischer on 3 July 2024, correspondence was sent to Ms Fischer in relation to her non-attendance and she was informed that the matter will be referred to a Fair Work Commission Member. 

1. Ms Fischer emailed the Commission on 9 July 2024 and requested a second conciliation, to which Darling Downs Indigenous Health agreed, while maintaining an objection that it is not a National System Employer.

1. A second conciliation was scheduled on 15 August 2024, however Ms Fischer once again did not attend.

1. Since then Ms Fischer has not responded to any of the Commission’s attempts to contact her.

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. 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. 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. On 25 September 2024 Ms Fischer was also specifically invited to provide submissions on why her matter should not be dismissed under ss. 587(1)(a) or 587(1)(c).  No response was received.

1. Ms Fischer has been on notice of the likely consequences if she does not provide further information that supports her eligibility to make the application.

1. I am satisfied that Ms Fischer has demonstrated that she does not intend to prosecute her application.

1. I have separately made an order dismissing Ms Fischer’s application (PR781190).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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