Vera Atanasovska v Ideale Australia Pty Ltd

[2024] FWC 1150

[2024] FWC 1150

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vera Atanasovska
v

Ideale Australia Pty Ltd

(U2024/2384)

COMMISSIONER TRAN MELBOURNE, 3 MAY 2024

Application for an unfair dismissal remedy – failure to prosecute application – application dismissed under s 587.

1. Ms Vera Atanasovska has applied to the Fair Work Commission (FWC) for an unfair dismissal remedy in relation to the termination of her employment with Ideale Australia Pty Ltd. The application was lodged on 3 March 2024.

1. This is a decision to dismiss Ms Atanasovska’s application under s 587 of the Fair Work Act for failing to prosecute her application. The Commission is dismissing this application on its own initiative.

1. Ms Atanasovska has failed to attend three conferences of the Commission and has failed to comply with my directions.

Failure to attend conferences

1. The first conference was a staff conciliation scheduled for 2 April 2024. The Respondent attended the staff conciliation. The Applicant did not attend, and the conciliation could not proceed. The staff conciliator attempted to contact Ms Atanasovska on the mobile phone number provided in her F2 application form and left voicemail messages. Ms Atanasovska did not contact the Commission in response to the voicemail messages.

1. The second conference was scheduled for Monday 15 April 2024 at 12:00pm before me. Neither party attended that case management conference. My chambers contacted Ms Atanasovska by telephone, who indicated that she was unaware of the case management conference but confirmed that we had the correct email address. My chambers also contacted the Respondent and left a voicemail message. I indicated to both parties that a further case management conference would be listed.

1. The third conference was scheduled to be held on Friday 19 April 2024 at 2:00 PM. My chambers attempted to contact both parties at the time of the conference, and neither party attended. We nevertheless started the conference and noted for the record that there were no attendances.

Failure to comply with Directions

1. My chambers issued Directions on 10 April 2024. Among other requirements, Ms Atanasovska was required to file and serve her materials (outline of argument, witness statements and supporting documents) by Wednesday, 24 April 2024. We did not receive any materials from Ms Atanasovska.

1. We informed Ms Atanasovska by email on Friday 19 April 2024 that she risked the dismissal of her application if she did not contact the Commission or comply with directions. We did not receive any response from Ms Atanasovska.

1. Ms Atanasovska did contact my chambers by telephone on Friday 26 April 2024 but did not leave a voicemail message. On Monday 29 April 2024, we again called Ms Atanasovska and sent an email providing her with a further opportunity to inform us that she wished to continue with her application and to provide satisfactory reasons for why she failed to attend conferences or comply with directions. We again informed her that if we did not hear from her, she risked having her matter dismissed. We did not receive any response from Ms Atanasovska.

Consideration

1. This is Ms Atanasovska’s application but she has failed to attend three conferences scheduled by the Commission, and has provided no reasons for her failure to attend. She has failed to comply with Directions and has not contacted the Commission to indicate that she wishes to proceed, despite being given multiple opportunities to do so.

1. Section 587 of the Act provides:

“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. The clear words of the section do not limit the Commission’s powers to dismiss an application to only circumstances where the grounds in (a), (b) or (c) are made out. I am of the view that the power to dismiss an application can include circumstances where an applicant has failed to prosecute their own case, as demonstrated in this matter by Ms Atanasovska failing to attend conferences, comply with directions and respond to communications from the Commission.

1. The power in s 587 is discretionary and I am satisfied that I should exercise my discretion in this matter to dismiss the application.

Order

1. For the above reasons, I order that the application for unfair dismissal remedy filed by Ms Vera Atanasovska on 3 March 2024 be dismissed under s 587 of the Act.

COMMISSIONER

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