Ms Jacquita Sydney Janet Chong v Mount Isa City Council

[2024] FWC 2226

[2024] FWC 2226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Jacquita Sydney Janet Chong
v

Mount Isa City Council

(C2024/4182)

COMMISSIONER JOHNS MELBOURNE, 18 OCTOBER 2024

Application to deal with contraventions involving dismissal

1. This decision concerns an application made by Ms Jacquita Sydney Janet (Applicant) under s. 365 of the Fair Work Act 2009 (Cth) (FWA Act) for a general protections remedy in respect of her dismissal by Mount Isa City Council (Respondent).

1. The Respondent filed a response to the application, objecting to the Fair Work Commission (the Commission) dealing with the case. The objections were based on two grounds: first, that the Applicant was not dismissed, and second, that the Respondent is not a national system employer.

1. The matter was scheduled for a Mentions/Directions hearing on 29 July 2024. Prior to the hearing, my Chambers emailed the Applicant, informing her of the Respondent’s objection and advising her to seek legal advice regarding the validity of her application. The email also suggested that she consider filing an application with the Queensland Industrial Relations Commission, noting that time limits may apply. The Applicant was requested to provide a response to the jurisdictional objection if she wished to proceed with her current application. However, the Applicant did not respond, and neither party attended the Mentions/Directions hearing on 29 July 2024.

1. Directions were subsequently issued, requiring the Respondent to submit material supporting its jurisdictional objection and to serve this material on the Applicant. The Directions also required the Applicant to file a response. The matter was scheduled for a hearing on 26 August 2024 to address the jurisdictional objection. The records indicate that all relevant information was emailed to both parties at the email addresses they provided. However, neither party submitted any material nor attended the hearing on 26 August 2024.

1. On 7 September 2024, my Chambers attempted to contact the Applicant by phone to confirm if she wished to continue with her application. The Applicant did not answer or return the call. Further unsuccessful attempts to reach the Applicant by phone were made on 8 September 2024 and 8 October 2024. On 10 October 2024, my Chambers emailed the Applicant to inquire if she still wished to proceed with her application. No response was received.

1. Section 587 of the Act states 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. Since no party has submitted substantive materials, attended hearings, or responded to the Commission’s correspondence, I find that the application has no reasonable prospects of success. Therefore, the application is dismissed pursuant to s.587(2)(b) of the FW Act. An order to this effect will be issued shortly.

COMMISSIONER

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