Maxine Abraham v ALIWAH NRG Pty Ltd

[2025] FWC 477

[2025] FWC 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Maxine Abraham
v

ALIWAH NRG Pty Ltd

(C2025/104)

COMMISSIONER LIM PERTH, 17 FEBRUARY 2025

Application to deal with contraventions involving dismissal – extension of time – dismissed under s 587

1. On Wednesday 8 January 2025, Mrs Maxine Abraham filed a general protections application under s 365 of the Fair Work Act 2009 (Cth) against her former employer, ALIWAH NRG Pty Ltd. As Mrs Abraham was dismissed on Monday 14 October 2024, her application is outside the 21-day statutory deadline.

1. The matter was programmed for determinative conference to determine whether exceptional circumstances exist that would justify an extension of time. Mrs Abraham was given until Wednesday, 12 February 2025 to file her materials. She did not file anything. My Chambers wrote to her and gave her until Thursday, 13 February 2025 to file her materials. Mrs Abraham was put on notice that if she did not file her materials in support of her application, then I would proceed to consider whether her application should be dismissed under s 587 of the Act.

1. Mrs Abraham did not file any materials with the Commission by Thursday, 13 February 2025. My Chambers wrote to the parties to inform them that I was considering whether to dismiss Mrs Abraham’s application under s 587 and that the parties had until 12pm AWST, Monday 17 February 2025 to provide submissions on why I should or should not dismiss Mrs Abraham’s application.

1. ALIWAH NRG confirmed that they were supportive of the application being dismissed. Mrs Abraham did not respond. To date, my Chambers have not received any reply or contact from Mrs Abraham.

1. In the circumstances, I consider it appropriate to determine the matter on the papers.

Consideration and Order

1. Section 587 of the Act provides as follows:

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.

1. In the decision of McLeod v Kulgera Trading Company Pty Ltd, the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act.[1] In doing so, the decision of Commissioner Gooley (as she then was) in Tomas v Symbion Health was relied upon and reference was made to the following passages regarding the operation of s 587:

[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.[2]

1. While apparent that the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out in s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365.[3]

1. In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[w]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss 587(1)(a), (b) or (c).

1. I have decided to dismiss Mrs Abraham’s application as she has demonstrated non-compliance with the Commission’s directions on two occasions. The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.[4] There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.[5]

1. Accordingly, I order that Mrs Abraham’s application be dismissed.

COMMISSIONER

Matter determined on the papers.

[1] [2014] FWC 2112.

[2] [2011] FWA 5458, [57]–[58].

[3] See, e.g, Hawes v Plastic Planet Pty Ltd[2014] FWC 6457; Guest v Waddell Family Investments Pty Ltd [2014] FWC 4607.

[4] Fair Work Act 2009 (Cth) s 587(3)(a).

[5] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

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