Miss Kelly-Ann Manolas v Australian Ears and Hearing Care Pty Ltd

[2025] FWC 852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Miss Kelly-Ann Manolas
v

Australian Ears And Hearing Care Pty Ltd

(C2024/3240)

COMMISSIONER RIORDAN

BRISBANE, 27 MARCH 2025

Application to deal with contraventions involving dismissal – application dismissed

On 17 May 2024, Miss Kelly-Ann Manolas (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, Australian Ears And Hearing Care Pty Ltd (the Respondent) contravened various provisions of Part 3-1 of the FW Act by dismissing her on 26 April 2024.

In its Form F8A – Response to a general protections application involving dismissal, the Respondent raised jurisdictional objections which were dismissed by me in a decision issued on 13 February 2025.[1]

Further to my decision of 13 February 2025, the matter was scheduled for a s.365 Conciliation Conference by Telephone on Wednesday, 19 March 2025.

The Notice of Listing, which was issued to the parties on 20 February 2025, required that both parties write to Chambers confirming their appearances. The Applicant failed to contact or write to Chambers providing her appearance.

On 19 March 2025, my Chambers emailed the parties asking that they connect into the Conference line via the details provided in the Notice of Listing.

The Applicant failed to connect to the Conference line or otherwise contact Chambers on 19 March 2025.

On that same date, a ‘Non-Attendance Letter’ was issued to the Applicant, requiring that she write to Chambers within 7 days providing an explanation for her non-attendance and reasons why her application should not be dismissed.

No communication, by telephone or email, has been received from the Applicant in response to the Non-Attendance Letter.

Relevant Legislation

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.

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.”

It has been held that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[2] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[3]

The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to various attempts by my Chambers to contact her in relation to the Conciliation Conference of 19 March 2025, and has failed to respond to the Non-Attendance Letter issued on that same date. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

In L. Sayer v Melsteel Pty Ltd,[4] the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

After considering all circumstances in this matter, I am satisfied that it is appropriate to dismiss Miss Manolas’s application for failure to prosecute her case.

Accordingly, the application is dismissed pursuant to section 587 of the Act.

I so Order.

COMMISSIONER

[1] [2025] FWC 318.

[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[3] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

[4] [2011] FWAFB 7498 at [19].

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission heard an application by Miss Kelly-Ann Manolas against Australian Ears and Hearing Care Pty Ltd, concerning an alleged dismissal. The Applicant filed the application under section 365 of the Fair Work Act 2009, claiming her dismissal was contrary to the general protections provisions of the Act. The Respondent, her former employer, contested the application, raising jurisdictional objections that were dismissed in an earlier decision. Despite being scheduled for a conciliation conference, the Applicant failed to attend or communicate with the Commission, leading to the dismissal of her application.

The central legal issue was whether the Applicant's failure to participate in the scheduled conciliation conference and her subsequent lack of communication warranted the dismissal of her application. The Commission considered the discretion to dismiss an application under section 587 of the Act, specifically whether the Applicant had failed to prosecute her case. It was established that the dismissal of an application should only be done cautiously and on clear grounds. The Applicant's lack of response to multiple attempts to contact her and the absence of any effort to proceed with her case played a pivotal role in the decision.

The Commissioner found that the Applicant's failure to participate in the scheduled conference and communicate with the Commission demonstrated a lack of willingness to prosecute her case. This finding was supported by the precedent set in L. Sayer v Melsteel Pty Ltd, where the Full Bench of the Fair Work Commission held that an application could be dismissed if the applicant failed to prosecute without examining the merits. Given these circumstances, the Commissioner concluded that it was appropriate to dismiss the Applicant's application for failure to prosecute. The decision was made in accordance with section 587 of the Fair Work Act.

The Fair Work Commission ordered that Miss Manolas's application be dismissed. This decision underscores the importance of an applicant's active participation in the proceedings and the consequences of failing to do so. The dismissal serves as a reminder of the Commission's authority to manage its caseload effectively and the necessity for applicants to engage with the process diligently.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established