Sandhya Shrestha v Esc International Risk Management Services Pty Ltd

[2024] FWC 2636

[2024] FWC 2636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sandhya Shrestha
v

Esc International Risk Management Services Pty Ltd

(U2024/8140)

COMMISSIONER P RYAN SYDNEY, 24 SEPTEMBER 2024

Application for an unfair dismissal remedy

1. On 13 July 2024, Ms Sandhya Shrestha (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

1. The respondent to the Application was identified as Akbar Enterprises Pty Ltd.

1. On 15 August 2024, Akbar Enterprises Pty Ltd filed a Form F3 Response in which it simply stated that it never employed the Applicant. The Form F3 Response was completed by Mr Riz Akbar, a director of Akbar Enterprises Pty Ltd.

1. The matter was subsequently allocated to my Chambers and listed for a case management and directions hearing on 27 August 2024.

1. At the case management and directions hearing the Applicant appeared on her own behalf and Mr Akbar appeared for Akbar Enterprises Pty Ltd. During the case management and directions hearing, the Applicant applied to amend the name of the respondent to Esc International Risk Management Services Pty Ltd. Mr Akbar is a director of Esc International Risk Management Services Pty Ltd and consented to the amendment. Accordingly, and pursuant to s.586 of the FW Act, I amended the name of the respondent to Esc International Risk Management Services Pty Ltd (Respondent).

1. Arising out of the case management and directions hearing the matter was listed for hearing on 22 October 2024 and the parties were directed to file materials as follows:

3 September 2024:      Respondent to file Form F3 Response.

17 September 2024:    Applicant to file materials.

1 October 2024:         Respondent to file materials.

8 October 2024:         Applicant to file materials in reply.

1. On 3 September 2024, the Respondent filed its Form F3 Response in which it raised two jurisdictional objections: firstly, that the Applicant was not dismissed and secondly, the Respondent complied with the Small Business Fair Dismissal Code.

1. On 16 September 2024, I instructed my associate to send correspondence to the parties advising that the Respondent’s jurisdictional objections will be heard concurrently with the merits of the Application.

1. The Applicant was required to file materials in support of the Application by 4:00pm on 17 September 2024. The Applicant did not file any materials.

1. On 18 September 2024, I instructed my associate to send correspondence to the Applicant seeking an explanation for her failure to comply with directions issued by the Commission. The Applicant was directed to file an explanation by 4:00pm on 18 September 2024. The Applicant did not provide any explanation or response.

1. On 19 September 2024, I instructed my associate to send further correspondence to the Applicant seeking an explanation for her failure to comply with directions of the Commission. The Applicant was directed to file her explanation by 4:00pm on 19 September 2024. The Applicant did not provide any explanation or response.

Legislative Provisions

1. Section 587 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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

1. The Applicant has failed to comply with directions of the Commission and failed to provide any response or explanation for that non-compliance on two occasions.

1. The failure to comply with the directions of the Commission in this matter is to be viewed in the context of the Applicant receiving two ‘prompts’ between the case management and directions hearing on 27 August 2024 and the due date for the filing of her materials on 17 September 2024.

1. The first prompt was the Respondent’s filing of its Form F3 Response on 3 September 2024. The second prompt was the correspondence sent from my Chambers on 16 September 2024 regarding the jurisdictional objections.

1. Despite those prompts, the Applicant has failed to comply with directions of the Commission and has failed to provide any explanation for that failure or any response otherwise. In these circumstances, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

1. For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

1. The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR779566>