Ms Jacquita Sydney Janet Chong v Mount Isa City Council Summary

[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

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).

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.

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.

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.

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.

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.”

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by Ms Jacquita Sydney Janet Chong, seeking a general protections remedy in respect of her dismissal by the Mount Isa City Council. The Council objected to the FWC dealing with the case on two grounds: first, that Ms Chong was not dismissed, and second, that the Council is not a national system employer. The matter was scheduled for a Mentions/Directions hearing, but neither party attended. Subsequent attempts to contact Ms Chong regarding her application were unsuccessful, leading to the application being dismissed for lack of reasonable prospects of success. The Commission found that since no party had submitted substantive materials, attended hearings, or responded to the Commission's correspondence, the application had no reasonable prospects of success.

The primary legal issue before the Commission was whether it had jurisdiction to hear Ms Chong's application. The Council argued that Ms Chong was not dismissed, and that the Council was not a national system employer. The Commission had to determine whether these objections were valid and, if so, whether they were sufficient grounds to dismiss the application. The Commission also had to consider whether the application was frivolous or vexatious, or whether it had no reasonable prospects of success, as outlined in section 587 of the Fair Work Act 2009 (Cth). Given the lack of response from Ms Chong and the failure of both parties to engage with the process, the Commission concluded that the application had no reasonable prospects of success.

In dismissing the application, Commissioner Johns noted that despite the jurisdictional objections raised by the Council, the more pertinent issue was the lack of engagement from Ms Chong. The Commission attempted to contact Ms Chong on multiple occasions, but there was no response. Commissioner Johns determined that without any substantive materials or engagement from Ms Chong, the application could not proceed. The decision was made under section 587(2)(b) of the Act, which prevents the dismissal of an application under section 365 on the ground that it has no reasonable prospects of success. The dismissal was deemed appropriate as no party had made any substantive submissions or attended the scheduled hearings.

An order will be issued shortly, formalising the dismissal of Ms Chong's application. The Commission highlighted the importance of engagement and responsiveness in the legal process, noting that without it, the application could not proceed. The decision underscores the need for parties to actively participate in proceedings to ensure that the Commission can effectively address their claims.

Ms Jacquita Sydney Janet Chong v Mount Isa City Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established