Niloofar Khadem v Wafa Group Enterprise Pty Ltd
[2025] FWC 639
•4 MARCH 2025
| [2025] FWC 639 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Niloofar Khadem
v
WAFA GROUP ENTERPRISE PTY LTD
(U2024/14099)
| DEPUTY PRESIDENT BELL | MELBOURNE, 4 MARCH 2025 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case – failure to file material by due dates – no reasonable prospect of success – application dismissed.
On 25 November 2024, Ms Niloofar Khadem applied to the Fair Work Commission for an unfair dismissal remedy. She alleges she was unfairly dismissed by WAFA GROUP ENTERPRISE PTY LTD on 16 November 2024. Ms Khadem filed an amended Form F2 application on 11 December 2024, stating her representative were the lawyers JobWatch.
In its Form F3 Employer response, the employer agrees Ms Khadem was dismissed on 16 November 2024 but says that the dismissal was fair and was for, in summary, “repeated lateness”.
Upon the matter being allocated to me, I issued directions on 3 February 2025 for the conduct of the proceeding. I listed the matter for a mention hearing on 10 February 2025. By those directions, Ms Khadem had to file her evidence and any supporting material by 19 February 2025. The matter was listed for a hearing on 24 March 2025.
As to non-compliance, the directions stated:
“Non-compliance: You must provide the material sought by the date specified. An extension of time will not be granted without substantial reason as to why you cannot meet the requirements by the date specified.”
On the morning of 10 February 2025, JobWatch wrote to chambers requesting an adjournment of the mention hearing due to an ethical issue. That request was refused and Ms Khadem was also directed to personally attend the mention hearing. At the mention hearing later that day, Ms Khadem was represented by JobWatch. Ms Khadem did not attend herself, despite the direction for her to do so. Through her solicitors, the ethical issue was resolved by Ms Khadem being granted an extension of time to file her material. The date for her to file and serve her material was extended to 26 February 2025. Some other timetabling adjustments were also made, although the hearing date remained fixed for 24 March 2025. That day my chambers sent an email to the parties, including Ms Khadem herself, with the revised deadlines.
On 17 February 2025, JobWatch sent an email stating it no longer acted for Ms Khadem. Ms Khadem was copied to that email.
Ms Khadem did not file her material, or any material, by the revised deadline of 26 February 2025.
On 27 February 2025, I wrote to Ms Khadem to tell her her material was overdue and that if she does not file her material her case might be dismissed. I also asked her if she still wanted to continue her case. I again extended the time for her to file her material to 28 February 2025. The full email (formalities excluded) states:
“I refer to your unfair dismissal application, which is presently listed before Deputy President Bell on Monday 24 March 2025, in person at the Fair Work Commission in Melbourne.
Directions were issued by the Deputy President on 3 February 2025 in regard to your application (copy attached).
Following the Mention before Deputy President Bell on 10 February 2025 which your former representative attended, the below email [not included here] was sent to you confirming the revised dates for the filing of material in this matter.
The Deputy President notes that you have not filed any of your material – witness statements, other documentary evidence and submissions – that you were required to file by 4pm yesterday, Tuesday 26 February 2025. Nor has the Deputy President received any explanation for the failure to provide that material.
Chambers was advised by your former representative on 17 February 2025 that they are no longer representing you in this matter. Out of fairness to you as a self-represented party, the Deputy President draws to your attention the possible consequences for non-compliance with the Directions. This includes that the matter might be dismissed without being heard: see s.587 of the Fair Work Act 2009, or dismissed for failure to comply with a direction, upon an application by the employer: see s.399A of the Fair Work Act 2009. In this regard the Deputy President notes that in addition to not complying with the direction to file material by 26 February, you also failed to attend the Mention on 10 February 2025.
Are you still intending to continue your application?
Do you still intend to continue with your application? If you no longer intend to continue with your application, please tell us by email, in which case the Deputy President will note your matter has been discontinued and he will close the file.
If you do intend to continue with your application, you must file any material upon which you rely in support of your unfair dismissal application by no later than midday tomorrow, Friday 28 February 2025, or provide a proper explanation as to why you cannot do so.
In the absence of any material from you, the Deputy President’s provisional view is that your application will have no reasonable prospects of success and is liable to be dismissed on that basis under s 587 of the Act.”
Ms Khadem did not file any material nor provide any explanation to the Commission why she hasn’t. She has not contacted chambers at all.
Putting aside Ms Khadem’s unexplained failure to comply with the directions (as varied), it is now clear that she is not taking steps to prosecute her claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the applicant in the correspondence from chambers and was expressly indicated with the directions (at a point in time when she had the benefit of legal assistance). I am also satisfied that, in the absence of any evidence for her claim, the claim has no reasonable prospects of success.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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.”
I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper (or any) explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the applicant has not shown a willingness to prosecute her case. She has failed to comply with directions – as extended twice - of the Commission and has not provided an explanation for her failure to comply with directions, including in circumstances where it was expressly foreshadowed that her application would be dismissed if that information was not provided.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR784926.
Printed by authority of the Commonwealth Government Printer
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