Tehgan Bathis v The Heads Hotel Motel Pty Ltd Summary

[2025] FWC 902

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Tehgan Bathis
v

The Heads Hotel Motel Pty Ltd

(U2024/14315)

DEPUTY PRESIDENT EASTON

SYDNEY, 31 MARCH 2025

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

On 29 November 2024, Ms Tehgan Bathis made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

On 17 December 2024 Commission staff were advised that the parties had reached an in-principle agreement to resolve Ms Bathis’ application.

Since then Ms Bathis has not discontinued her application or taken any steps to prosecute her case.

Commission staff attempted to contact Ms Bathis on 18 December 2024, and 1, 17 January, 24 and 27 February, and 5 March 2025 by telephone, SMS and email.

On 27 February 2025, Ms Bathis’ representative contacted the Commission to advise they have been unable to contact Ms Bathis and on 17 March 2025, they filed a Form F54 ceasing to act for the applicant.

Since then Ms Bathis has not responded to the Commission’s attempts to contact her.

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 Ms Bathis’ has been on notice that her application could be dismissed under s.587, and has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application.

In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Bathis’ application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Tehgan Bathis on 29 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an unfair dismissal application made by Tehgan Bathis against The Heads Hotel Motel Pty Ltd. The applicant sought a remedy under section 394 of the Fair Work Act 2009, alleging she had been unfairly dismissed. The Heads Hotel Motel Pty Ltd did not contest the application, and the parties appeared to reach an in-principle agreement to resolve the application. However, subsequent to this agreement, Ms Bathis did not take any further steps to prosecute her case, despite multiple attempts by Commission staff to contact her. Ms Bathis’ representative also ceased to act on her behalf.

The legal issue before the Deputy President was whether Ms Bathis' inaction in pursuing her application constituted sufficient grounds for the Commission to dismiss her application under section 587 of the Fair Work Act 2009. This section allows the Commission to dismiss an application for want of prosecution when the applicant's conduct or omissions show they are no longer willing to participate in their own case. The Deputy President considered whether Ms Bathis had been made aware of the potential for her application to be dismissed and whether she had an opportunity to present her case.

The Deputy President found that Ms Bathis had been sufficiently informed of the possibility of her application being dismissed for want of prosecution and had ample opportunity to present her case. Despite multiple attempts to contact her, Ms Bathis did not respond to the Commission’s communications, and her representative ceased to act on her behalf. The Deputy President concluded that Ms Bathis' inaction justified the dismissal of her application under section 587 of the Fair Work Act 2009. Consequently, the application was dismissed, and no further action would be taken on the matter.

The final order made by the Deputy President was that the unfair dismissal application made by Ms Tehgan Bathis on 29 November 2024 was dismissed. This decision underscores the importance of active participation in proceedings before the Commission and the consequences that may arise from a lack of such participation.

Tehgan Bathis v The Heads Hotel Motel Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established