Nicole Barwick v Health Support Services - [2025] FWC 2460

[2025] FWC 2460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 773—Termination of employment

Nicole Barwick
v

Health Support Services

(C2025/6342)

DEPUTY PRESIDENT BEAUMONT

PERTH, 20 AUGUST 2025

Application to deal with an unlawful termination dispute – dismissal under s 587 at the Commission’s initiative

Ms Nicole Barwick (the Applicant) made an application under s 773 of the Fair Work Act 2009 (Cth) (the Act), on her understanding that she had been dismissed by Health Support Services (the Respondent). The Respondent objected to the application on the grounds that the Applicant’s employment had not been terminated.

On 31 July 2025, a Notice of Listing was issued for a programming conference to be held on 14 August 2025. On 13 August 2025, Chambers was contacted by the State Solicitor’s Office, who was acting on behalf of the Respondent, and informed that the Applicant had, tragically, passed away over the weekend of 9-10 August 2025.

In light of the Respondent’s correspondence the listing was vacated, and directions were issued to the parties on 13 August 2025, that required the Respondent to file a statutory declaration or witness statement in respect of that which it had communicated to Chambers. The Applicant was copied to the correspondence in the event that her family had access to her email.

The Respondent filed a statutory declaration which set out the steps taken by it to locate the Applicant. Those steps had been taken in circumstances where the Respondent was aware that the Applicant had ongoing health issues and had attempted to contact the Applicant to confirm whether she was intending to work. The Respondent had received no response from the Applicant and therefore conducted two welfare checks after first having liaised with WA Police. Later in the day on 12 August 2025, the Applicant was located unresponsive in her home by officers of the Respondent, the Applicant having passed away.

In Stan v Frontline Australasia (‘Stan’),[1] Deputy President Gostencnik considered whether another person could proceed with an application for relief from unfair dismissal pursuant to s 394 of the Act in circumstances where the applicant is deceased. The Deputy President expressed:

The right under the Act to make an unfair dismissal remedy application is personal to the dismissed employee. The Act does not confer a right to a remedy, but only a right to make an application and having it heard according to law. It is a right that is a bare and non-assignable right and generally is not one that is to be regarded as a proprietary right. The remedies of reinstatement, loss of pay orders or compensation that might be available do not follow simply because an applicant is successful in persuading the Commission that his or her dismissal was harsh, unjust or unreasonable. The remedies that might be granted are discretionary and the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement.[2]

In Rohrlach v L.M.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 2460
Decision Date: 20 AUGUST 2025

CaseChat Overview and Summary

Nicole Barwick brought an application against Health Support Services under the Fair Work Act 2009, alleging that she had been unlawfully dismissed. Health Support Services objected, asserting that Ms. Barwick's employment had not been terminated. The application was set for a programming conference, but it was vacated after Health Support Services informed the Fair Work Commission that Ms. Barwick had passed away. Given the circumstances, the Commission had to determine if the application could continue in light of Ms. Barwick's death.

The central legal issue was whether the application could proceed after Ms. Barwick's death. The Court referred to previous cases, Stan v Frontline Australasia and Rohrlach v L.M. Robertson & P.F. Robertson, which established that the right to make an unfair dismissal remedy application is personal to the dismissed employee and non-assignable. Moreover, the remedies available, such as reinstatement, loss of pay orders, or compensation, are discretionary and intertwined with the discretionary considerations for reinstatement. Given these precedents, the Court had to assess whether the application could have a reasonable prospect of success without Ms. Barwick.

The Deputy President concluded that there was no legal authority to continue the application after Ms. Barwick's death, and no clear indication of who might have the authority to do so on her behalf. The application required the Commission to establish its jurisdiction, program the matter for a private conference, and assess whether the dispute could be resolved. Given Ms. Barwick's passing, it appeared unlikely that the right to bring and pursue the application could be assigned or transmitted to another person, even if such a power existed. Additionally, it was unclear who that other person might be. The Deputy President found that the application had no reasonable prospects of success due to Ms. Barwick's untimely death.

The application was dismissed under section 587(1)(c) of the Fair Work Act, as it no longer had a reasonable prospect of success. An order giving effect to this decision was issued concurrently.

Orders