Shenay Bali v Proud Real Estate

[2021] FWC 4735

[2021] FWC 4735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shenay Bali
v
Proud Real Estate
(U2021/4306)

VICE PRESIDENT CATANZARITI SYDNEY, 4 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 19 May 2021, Shenay Bali (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, “Proud Real Estate”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 23 June 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 12 July 2021, directing her to advise us by 4:00pm on 19 July 2021 whether she still pressed her application. However, we did not receive a response from the applicant by that time.

[4] On 20 July 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 23 July 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] 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.

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.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the 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).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

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