Maya Walsh v BB Pacifico Pty Ltd Summary

[2024] FWC 2253

The attached document replaces the document previously issued with the above code on 22 August 2024.

Minor corrections to punctuation at [3] and [4]. The words ‘in writing’ added after ‘informed’ and the word ‘on’ added after 2pm at [4]

Associate to Deputy President Saunders

Dated 22 August 2024

[2024] FWC 2253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maya Walsh
v

BB Pacifico Pty Ltd

(U2024/6825)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 22 AUGUST 2024

Unfair dismissal application – application dismissed

This decision relates to an unfair dismissal application by Ms Maya Walsh (Applicant) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act) against her employer, BB Pacifico Pty Ltd (Respondent).

The Applicant contends that she was dismissed by the Respondent on 12 June 2024 in contravention of the unfair dismissal provisions under Part 3-2 of the Act. The Respondent objected to the application on the basis that the Applicant’s employment does not meet the minimum employment period.

I listed the matter for directions, by telephone, at 9am on 15 August 2024 to make directions in relation to the Respondent’s jurisdictional objection to the application. There was no appearance by or on behalf of the Applicant at the directions hearing.

Later, on 15 August 2024, the Applicant was informed, in writing, that the matter had been listed for a further directions hearing, by telephone, at 2pm on Tuesday, 20 August 2024, and if the Applicant did not attend that directions hearing the matter may be dismissed without further prior notice to the Applicant. On 15 August 2024, my Associate attempted, without success, to contact the Applicant by telephone. A message was left for the Applicant to contact my chambers. She did not do so.

There was no appearance by or on behalf of the Applicant at the directions hearing on 20 August 2024, nor has the Applicant communicated with the Fair Work Commission since that directions hearing.

For the reasons set out above and the failure on the part of the Applicant to take any steps to prosecute her unfair dismissal application, I have decided to exercise my discretion pursuant to s 587(1) of the Act to dismiss the Applicant’s unfair dismissal application against the Respondent in these proceedings. The Applicant’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Maya Walsh v BB Pacifico Pty Ltd was heard by the Fair Work Commission, with Deputy President Saunders presiding. The applicant, Maya Walsh, lodged an unfair dismissal application against her employer, BB Pacifico Pty Ltd, claiming that she was dismissed on 12 June 2024 in breach of the unfair dismissal provisions under Part 3-2 of the Fair Work Act 2009. The employer contested the application, arguing that the applicant’s employment period did not meet the minimum requirement. The case was listed for directions to address this jurisdictional objection, but the applicant failed to appear or communicate with the Commission.

The central legal issue was whether the applicant’s employment duration met the threshold for the Commission’s jurisdiction to hear the unfair dismissal application. Additionally, the court had to consider the applicant’s failure to participate in the proceedings and respond to communications from the Commission as potentially indicative of a lack of intent to proceed with the application. The Commission needed to balance the procedural requirements of the Act with the applicant’s procedural failures.

In dismissing the application, Deputy President Saunders noted the applicant's failure to appear for the listed directions hearings and her lack of communication with the Commission since the second notice was sent. Saunders exercised discretion under s 587(1) of the Act to dismiss the application, finding that the applicant had not taken any steps to prosecute her claim. The Court found that the applicant’s non-compliance with procedural requirements, including failure to appear and communicate, justified the dismissal of her application.

Maya Walsh v BB Pacifico Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established