Shania Bell v Whyalla Beef Pty Ltd

[2025] FWC 2015

[2025] FWC 2015

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.773—Termination of employment

Shania Bell
v

Whyalla Beef Pty Ltd

(C2025/3586)

DEPUTY PRESIDENT EASTON SYDNEY, 14 JULY 2025

Application to deal with an unlawful termination dispute – dismissal under s.587 for want of prosecution.

1. On 5 May 2025, Ms Shania Bell filed an unlawful termination application under s.773 of the Fair Work Act 2009 (Cth).

1. Ms Bell alleged she was employed by Whyalla Beef Pty Ltd until she was dismissed on 1 May 2025. Ms Bell claims that she was dismissed because of her temporary absence from work due to illness or injury.

1. Section 723 of the Act is in the following terms:

“Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

1. In the Form F9 Application the following appears at Question 2.4:

1. If Whyalla Beef Pty Ltd is a National System Employer then Ms Bell is prima facie entitled to make a general protections court application.

1. On 6 May 2025, an email and was sent to Ms Bell in relation to whether Whyalla Beef Pty Ltd is a National System Employer. An SMS was also sent to Ms Bell telling her that an important email had been sent. Ms Bell did not respond to this email.

1. A further email was sent to Ms Bell on 23 May 2025 and she was required to respond by 30 May 2025.  Ms Bell was also advised that her application may be dismissed without further notice if she did not respond. An SMS was also sent to Ms Bell telling her that an important email had been sent. Ms Bell did not respond to this email.

1. On 5 June 2025 a follow-up email, and SMS regarding an important email, was sent to Ms Bell as follows:-

“You have made an unlawful termination application and you claim that the Respondent dismissed you because of your temporary absence from work because of illness or injury.

…

If  the Respondent is a National System Employer then you were entitled to make a general protections court application in relation to your dismissal (click here for more information about General Protections applications).”

1. Ms Bell was required to respond by 10 June 2025.

1. To date, Ms Bell has not responded to any of the Commission’s attempts to contact her.

1. 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.”

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. 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. 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]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Bell’s application.

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

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

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Shania Bell on 5 May 2025 is dismissed.

DEPUTY PRESIDENT

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