Ravneet Kandola v BJK Genesis Property Pty Ltd

[2024] FWC 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ravneet Kandola
v

BJK Genesis Property Pty Ltd

(U2024/8420)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 NOVEMBER 2024

Application for an unfair dismissal remedy remedy – applicant’s conduct or omissions show that they are no longer willing to participate in their own case - application dismissed under s.587(3).

On 18 July 2024 Ms Ravneet Kandola made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled for 19 September 2024 however Ms Kandola did not attend, Ms Kandola has not responded to multiple attempts to contact her since then.

For the reasons that follow I am satisfied that Ms Kandola’s application should be dismissed for want of prosecution.

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

I am satisfied that it is appropriate to dismiss Ms Kandola’s application. She did not attend a scheduled conference and has taken no steps since then to pursue her claim.

I have separately made an order dismissing Ms Kandola’s application (PR781194).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Ravneet Kandola versus BJK Genesis Property Pty Ltd, the Fair Work Commission was presented with an unfair dismissal application made by Ms Ravneet Kandola against her former employer. The Commission was tasked with determining whether the dismissal of Ms Kandola was unjust under section 394 of the Fair Work Act 2009. A scheduled conciliation conference for 19 September 2024 was missed by Ms Kandola, and despite multiple attempts to contact her since then, she has not responded or participated in the proceedings. This led to the Commission considering the dismissal of her application for want of prosecution.

The primary legal issue before the Commission was whether the application should be dismissed for Ms Kandola’s lack of participation and failure to attend the scheduled conciliation conference. Section 587(3) of the Fair Work Act provides the Commission with the authority to dismiss an application if the applicant has ceased to pursue or participate in the proceedings, which was a key consideration in this case. The Commission had to determine if procedural fairness was afforded to Ms Kandola and whether her inaction justified the dismissal of her application.

The Commission concluded that Ms Kandola’s conduct demonstrated a clear unwillingness to participate in her own case, having failed to attend the scheduled conciliation conference and to respond to attempts to contact her. The Deputy President was satisfied that procedural fairness had been observed and that the dismissal of the application under section 587(3) was appropriate. The lack of any further steps taken by Ms Kandola to pursue her claim reinforced the decision to dismiss the application for want of prosecution.

The Fair Work Commission dismissed Ms Kandola’s unfair dismissal application under section 587(3) of the Fair Work Act. The dismissal was made on the basis that Ms Kandola did not participate in the proceedings, did not attend the scheduled conciliation conference, and had failed to respond to attempts to contact her, indicating a lack of interest in pursuing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established