Rebecca Pawlowsky v Mc Hugh Maxillofacial Pty Ltd Summary

[2025] FWC 2104

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Pawlowsky
v

Mc Hugh Maxillofacial Pty Ltd

(U2025/5149)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JULY 2025

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative for want of prosecution.

On 25 April 2025, Ms Rebecca Pawlowsky made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Ms Pawlowsky’s application raised a concern about whether her application was filed within the 21 day time limit.

Commission staff tried to contact Ms Pawlowsky on 21 May and 11 June 2025 about this concern. Ms Pawlowsky has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

I am satisfied that Ms Pawlowsky has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Pawlowsky’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Rebecca Pawlowsky on 25 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Rebecca Pawlowsky lodged an application for an unfair dismissal remedy with the Fair Work Commission (FWC) under section 394 of the Fair Work Act 2009 (Cth). The application was made against McHugh Maxillofacial Pty Ltd. The dispute centred on whether Ms Pawlowsky's application was filed within the statutory 21-day time limit. Further, the Commission had concerns about Ms Pawlowsky's failure to respond to correspondence regarding her application, which raised questions about her willingness to prosecute the case. The Deputy President of the FWC, Easton, presided over the matter.

The primary legal issue before the court was whether Ms Pawlowsky's failure to respond to the Commission's correspondence and address the time limit concern constituted a lack of willingness to prosecute her application, thereby warranting dismissal under section 587 of the Fair Work Act 2009 (Cth). The court needed to determine if Ms Pawlowsky's conduct or omissions showed that she was no longer willing to participate in her own case. The court also had to consider whether the facility under section 587 could be engaged to dismiss the application.

Deputy President Easton concluded that Ms Pawlowsky had been provided with an adequate opportunity to address the concerns regarding her application and the time limit. Despite multiple attempts by the Commission to contact Ms Pawlowsky, she did not respond. This inaction was considered indicative of her unwillingness to participate in the case. The Deputy President found that the Commission was not required to persevere with the application, and it was appropriate to dismiss the application under section 587. The Deputy President dismissed Ms Pawlowsky's application for an unfair dismissal remedy.

The final order made by the Deputy President was that the application for an unfair dismissal remedy made by Ms Rebecca Pawlowsky on 25 April 2025 be dismissed. The dismissal was pursuant to section 587 of the Fair Work Act 2009 (Cth) for want of prosecution.

Rebecca Pawlowsky v Mc Hugh Maxillofacial Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established