Mrs Douha Hamdouch v Islamic Womens Association of Australia Summary

[2025] FWC 920

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Douha Hamdouch
v

Islamic Womens Association Of Australia

(U2024/15145)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 APRIL 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 16 December 2024, Mrs Douha Hamdouch made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mrs Hamdouch did not attend her telephone conciliation that was scheduled for 12 February 2025.

Commission staff tried to contact Mrs Hamdouch on 21 January, 7 February and 28 February 2025 by telephone, email and SMS about whether she wants to continue her unfair dismissal claim. Mrs Hamdouch has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

I am satisfied that Mrs Hamdouch has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mrs Hamdouch’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Douha Hamdouch on 16 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Mrs Douha Hamdouch v Islamic Womens Association of Australia, Mrs Hamdouch brought an unfair dismissal application to the Fair Work Commission under section 394 of the Fair Work Act 2009. She alleged that she was dismissed by the Islamic Women's Association of Australia under section 587(1)(c) of the Act. Mrs Hamdouch did not participate in a scheduled telephone conciliation and failed to respond to subsequent communications from the Commission, prompting the Association to seek dismissal of the application on the basis of want of prosecution.

The primary legal issue before the court was whether the Commission could dismiss Mrs Hamdouch's application under section 587 of the Fair Work Act for her failure to prosecute the case. Section 587 of the Act provides the Commission with the discretion to dismiss an application if it considers that the applicant is no longer willing to pursue their case. The court had to determine whether Mrs Hamdouch's conduct and omissions indicated a lack of willingness to continue with her application, thereby warranting its dismissal.

In considering the matter, the Deputy President reviewed the evidence of Mrs Hamdouch's failure to respond to the Commission's attempts to contact her regarding the proceedings. It was noted that Mrs Hamdouch had not participated in the scheduled conciliation and had not engaged with the Commission despite multiple communications. The Deputy President found that Mrs Hamdouch had been provided with sufficient opportunities to present her case but had chosen not to participate further. Consequently, the Deputy President was satisfied that the application could be dismissed under section 587 for want of prosecution.

The final order of the court was that the application made by Mrs Douha Hamdouch under section 394 of the Fair Work Act 2009 was dismissed. The court held that Mrs Hamdouch's failure to engage with the proceedings justified the dismissal of her unfair dismissal application.

Mrs Douha Hamdouch v Islamic Womens Association of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established