Richelle Baquiran v Early Childhood School Pty Ltd

[2024] FWC 2370

[2024] FWC 2370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Richelle Baquiran
v

Early Childhood School Pty Ltd

(C2024/4909 and C2024/4912)

DEPUTY PRESIDENT EASTON SYDNEY, 3 SEPTEMBER 2024

Application to deal with an unlawful termination dispute – applications dismissed.

1. On 21 July 2024 and 22 July 2024, Ms Richelle Baquiran made two unlawful termination applications under s.773 of the Fair Work Act 2009 (Cth).

1. In July and August 2024 Commission staff have tried to contact Ms Baquiran to discuss her applications. Ms Baquiran may not be eligible to make an application under s.773 because the Respondent appears to be a national system employer.

1. To date Ms Baquiran has not contacted the Commission as requested.

1. Under s.723 of the Act, a person entitled to make a general protections application must not make an unlawful termination application. Section 587(1) of the FW Act provides 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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. 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]).

1. 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).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Baquiran’s applications. Ms Baquiran has not provided any reasons for her non-compliance despite receiving ample communication and opportunity to do so.

1. Ms Baquiran has also been on notice of the likely consequences for her applications if she did not respond to the Commission’s inquiry and it is quite likely that she has abandoned her applications.

1. For these reasons I have decided to dismiss Ms Baquiran’s applications on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR778901).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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