Ms Julie Clements v

[2025] FWC 467

[2025] FWC 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Julie Clements
v

SCJ Support Centre Pty Ltd T/A Simon Curwood Jewellers
(C2024/8071)

COMMISSIONER RIORDAN SYDNEY, 17 FEBRUARY 2025

Application to deal with contraventions involving dismissal – application dismissed

1. On 10 November 2024, Ms Julie Clements (the Applicant) filed a general protections application involving dismissal (the Application) to the Fair Work Commission (the Commission), alleging that she was dismissed by SCJ Support Centre Pty Ltd T/A Simon Curwood Jewellers (the Respondent) in contravention of Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).

1. On 21 November 2024, the Respondent filed a response to the Application, raising a jurisdictional objection on the grounds that the Application was filed outside of the 21-day statutory timeframe.

1. Further to a Telephone Directions Conference being held in this matter, Jurisdictional Directions were issued to the parties on 13 January 2025, requiring that the Respondent file its jurisdictional materials by 27 January 2025 and the Applicant file her jurisdictional materials by 10 February 2025.

1. The Respondent filed the materials it intended to rely on by 23 January 2025.

1. The Applicant failed to file any materials by 10 February 2025 as directed.

1. On 12 February 2025, my Chambers sent correspondence to the Applicant seeking an explanation from her in relation to her delay in filing. However, no response was received from the Applicant.

1. On 14 February 2025, my Chambers attempted to contact the Applicant on her mobile phone. The Applicant did not answer, and a voice message was left by my Associate seeking an urgent return call.

1. An email was also sent to the Applicant on 14 February 2025 from my Chambers, confirming that a voice message had been left on her mobile phone and advising that Chambers sought a return call or reply email from her.

1. To date, no communication, by telephone or email, has been received from the Applicant.

Relevant Legislation

1. 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.”

1. 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.[1] 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.[2]

1. 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 and has failed to file materials in relation to the jurisdictional objection in this matter as directed. The Applicant has shown no willingness to prosecute her case and has taken no steps to do so.

1. In L. Sayer v Melsteel Pty Ltd,[3] 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.

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

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

1. I so Order.

COMMISSIONER

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

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

[3] [2011] FWAFB 7498 at [19].

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