Shineelta Shankaran v Baptist Care NSW & Act

[2025] FWC 942

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Shineelta Shankaran
v

Baptist Care NSW & ACT

(U2025/722)

DEPUTY PRESIDENT EASTON

SYDNEY, 3 APRIL 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 21 January 2025, Mrs Shineelta Shankaran made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mrs Shankaran’s application raised a concern about whether her application was filed within the 21 day time limit.

Commission staff tried to contact Mrs Shankaran on 6 February and 18 February 2025 by email and SMS about this concern. Mrs Shankaran has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings for want of prosecution. 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]).

I am satisfied that Mrs Shankaran has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mrs Shankaran’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Shineelta Shankaran on 22 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mrs Shineelta Shankaran lodged an unfair dismissal application with the Fair Work Commission (FWC) on 21 January 2025, alleging her dismissal by Baptist Care NSW & ACT was unjust. The application was made under section 394 of the Fair Work Act 2009. The FWC was required to determine whether Mrs Shankaran's application was filed within the 21-day statutory time limit and if the application should be dismissed for want of prosecution under section 587(1)(c). The FWC attempted to contact Mrs Shankaran on 6 February and 18 February 2025 to address the time limit concern, but she did not respond.

The legal issues before the FWC were whether the application was lodged within the required timeframe and whether the application should be dismissed due to Mrs Shankaran's failure to respond to the FWC's attempts to contact her. Section 587 of the Fair Work Act allows the FWC to dismiss an application for want of prosecution if it is shown that the applicant is no longer willing to pursue the application. The FWC found that Mrs Shankaran had not responded to the FWC's communications and therefore was not willing to pursue the application. This led to the conclusion that the application should be dismissed.

Deputy President Easton dismissed Mrs Shankaran's application under section 394 of the Fair Work Act 2009 on 3 April 2025, finding that she had failed to respond to the FWC's attempts to contact her regarding the time limit issue. The FWC determined that the application was not pursued by Mrs Shankaran, thereby justifying dismissal under section 587(1)(c). The application was dismissed in its entirety, and no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established