Richelle Baquiran v Early Childhood School Pty Ltd

[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.

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).

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.

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

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.”

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).

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.

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.

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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Ms. Richelle Baquiran filed two applications for unlawful termination against Early Childhood School Pty Ltd, arguing that she was dismissed without just cause or reason. The applications, made under section 773 of the Fair Work Act 2009, were dismissed by the Deputy President Easton on 3 September 2024. The applications were dismissed because the Commission had been unable to contact Ms. Baquiran to discuss her claims, and it appeared she may not be eligible to make such an application as the Respondent is likely a national system employer. Section 723 of the Act states that someone who is entitled to make a general protections application must not make an unlawful termination application.

The primary legal issue was whether Ms. Baquiran's applications could be dismissed under section 587 of the Fair Work Act. This section allows the Fair Work Commission to dismiss an application if it is not in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Additionally, the Commission has the authority to dismiss an application if the applicant has ceased to pursue or participate in the proceedings, even if the application does not fall under the specified grounds in section 587(1). Ms. Baquiran's failure to respond to the Commission's inquiries, despite multiple attempts and warnings of the consequences, led to the conclusion that she had abandoned her applications.

The Deputy President Easton decided to dismiss the applications on the Commission's own initiative, using the power granted by section 587(3)(a) of the Act. This decision was made in the context of procedural fairness, as Ms. Baquiran had been given ample opportunity to respond and was aware of the potential consequences of her inaction. The dismissal was based on the lack of prosecution, with no further engagement from Ms. Baquiran in the proceedings. An order to this effect was issued by the Deputy President.

In conclusion, the Fair Work Commission dismissed Ms. Baquiran's applications for unlawful termination against Early Childhood School Pty Ltd. The dismissal was grounded in Ms. Baquiran's failure to respond to the Commission's inquiries and her apparent abandonment of the proceedings. The Deputy President exercised the Commission's power under section 587(3)(a) of the Fair Work Act, ensuring procedural fairness in reaching this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established