Svetlana Tedeschi v Denovans Real Estate

[2025] FWC 272

[2025] FWC 272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Svetlana Tedeschi
v

Denovans Real Estate

(U2024/13867)

DEPUTY PRESIDENT DOBSON BRISBANE, 30 JANUARY 2025

Application for an unfair dismissal remedy - application dismissed

1. This decision relates to an unfair dismissal application by Ms Svetlana Tedeschi (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Denovans Real Estate (the Respondent) filed on 19 November 2024.

1. On 31 December 2024, I issued directions for the filing of material. The directions included a requirement that Ms Tedeschi file material by no later than 4:00pm (AEST) on 21 January 2025. Ms Tedeschi failed to do so.

1. On 22 January 2025, the Respondent wrote to my chambers informing that they were not in receipt of the Ms Tedeschi’s material. Later that same day, Ms Tedeschi wrote to my Chambers requesting she be permitted to file her material by 4:00pm on 23 January 2025. On 24 January 2025, I provided Ms Tedeschi with a further extension to file her materials by no later than 4:00pm that day. Ms Tedeschi was warned that her failure to follow directions could result in the dismissal of her application without further reference to her. Ms Tedeschi failed to file her material.

1. On 24 January 2025, the Respondent sought to rely upon case authorities to seek to have the matter dismissed pursuant to s.399A of the Act. The Respondent did not file a formal application to dismiss the application which was available to them to do using the Form F1 – General Application form. Ms Tedeschi wrote to my Chambers informing that she had contacted a law firm from whom she was seeking advice and that they would revert to the Commission regarding her position by 28 January 2025. Ms Tedeschi failed to provide any material or a response by 28 January 2025.

1. On 29 January 2025, my Chambers wrote to Ms Tedeschi informing that she had again failed to comply with the Directions of the Commission and directed her to provide her material, an explanation supported by evidence as to her repeated failure to comply with the Directions, a written response to the Respondent’s s399A request, and reasons why the Commission should not dismiss her application pursuant to s.587 of the Act. Ms Tedeschi was directed to provide this material by 4:00pm AEST that day. Ms Tedeschi failed to do so.

1. At 11:36pm on 29 January 2025, the Applicant provided a single page entitled “Unfair Dismissal” and an email apologising for her non-compliance and informing that she had been trying to seek legal advice but that she had been unsuccessful.

1. On 30 January 2025, my Chambers wrote to Ms Tedeschi informing that she had again failed to comply with the directions and setting out what she had been directed to file. Ms Tedeschi was informed that if she did not provide the material by 4:00pm AEST that day, the failure to respond could result in her application being dismissed with no further warnings. Following a request from Ms Tedeschi, the 4:00pm deadline was extended to 5:00pm. Again, Ms Tedeschi failed to respond, and she also failed to file her material by the new extended deadline.

Consideration

1. The Act provides the circumstances that an application may be dismissed.[1]

1. I note that Act does not limit the reasons when the FWC may dismiss an application.[2] In considering further whether Ms Tedeschi’s application should be dismissed on the initiative of the FWC,[3] I am satisfied that Ms Tedeschi has unreasonably and repeatedly failed to comply with directions to file her materials, provide evidence to support reasons why she has not filed her materials or to respond to communication from my Chambers.

Conclusion

1. For these reasons, I consider that it is appropriate to dismiss Ms Tedeschi’s application under s.587(3)(a) for want of prosecution. Pursuant to s.587(3)(a), Ms Tedeschi’s unfair dismissal application is dismissed. I so order.

DEPUTY PRESIDENT

[1] 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 general protections 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.

[2] Fair Work Act 2009 (Cth) s.587(1).

[3] Ibid s.587(3)(a).

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