1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Manal Ibrahim
v
AMES Australia
(U2022/7721)
DEPUTY PRESIDENT CROSS SYDNEY, 3 FEBRUARY 2023
Application for an unfair dismissal remedy
[1] Ms Manal Ibrahim (the Applicant) was employed by AMES Australia (the Respondent)
from 7 March 2016 to her dismissal on 30 June 2022. The Applicant filed an application for an
unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 21 July
2022 (the Application).
Relevant Facts and Directions
[2] On 6 September 2022, my Chambers issued a Notice of Listing for a member assisted
conciliation and directions hearing (first Directions Hearing), for 13 September 2022. The
following email accompanied that Notice of Listing:
Dear Parties,
The above matter has been allocated to the Chambers of Deputy President Cross for
consideration and determination.
This matter has been listed for Member Assisted Conciliation and Directions Hearing
at 11:00AM on Tuesday 13 September 2022. You will have received a Notice of Listing
by way of automatically generated email from the Fair Work Commission, and it is
again attached for your reference. This Listing outlines important information in
respect of the next steps in the progress of your matter, including the date, time, and
manner that you are required to attend the Member Assisted Conciliation and
Directions Hearing.
The Listing will contain draft Directions for your review. These Directions have not yet
been made and will be discussed at the above Listing.
Please confirm your attendance in reply, and include a list of prospective attendees. For
each attendee, please advise the following information
[2023] FWC 265
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 265
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[3] At the request of the Applicant and due to the unavailability of the Applicant’s
representative at the time, Employee Dismissals, the first Directions Hearing was relisted for
10 October 2022, and a further Notice of Listing was issued to that effect.
[4] On 10 October, the first Directions occurred, and the Applicant represented herself as
her representative was not granted permission to appear pursuant to s.596 of the Act, and the
Respondent was represented by Ms O’Grady of the Respondent. The Hearing of the Application
was listed for 6 December 2022, with a Notice of Listing issued on 12 October 2022, including
the following directions (the Hearing Directions):
1. Ms Manal Ibrahim (the Applicant) is directed to file with the Fair Work Commission,
and serve on AMES Australia (the Respondent), an outline of submissions, witness
statements and other documentary material the Applicant intends to rely on in support
of the application in this matter by 4pm on Wednesday 26 October 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the
Applicant, an outline of submissions, witness statements and other documentary
material the Respondent intends to rely on in opposition to the application in this matter
by 4pm on Wednesday 9 November 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the
Respondent, any reply material, that is, any witness statements and other documentary
material in reply to the Respondent's witness statements and documents by 4pm
Wednesday 16 November 2022.
4. Any party that requests permission to be legally represented at the hearing is directed
to file with the Fair Work Commission, and serve on the other party, a brief outline of
submissions in support of its request by 4pm on Wednesday 9 November 2022.
[5] On 1 November 2022, having not received any materials or correspondence from the
Applicant or their representative, the following email was sent from my Chambers to the
parties:
Dear Parties,
I note that the Applicant has not complied with Directions issued on 12 October 2022
as required by 26 October 2022. The Direction is mentioned below for your
convenience:
1. Ms Manal Ibrahim (the Applicant) is directed to file with the Fair Work
Commission, and serve on AMES Australia (the Respondent), an outline of
submissions, witness statements and other documentary material the
Applicant intends to rely on in support of the application in this matter by
4pm on Wednesday 26 October 2022.
Please urgently advise Chambers as to the status of the above required submissions by
4pm on 3 November 2022.
[2023] FWC 265
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[6] On 16 November 2022, having not received a response from the Applicant to the above
email, my Chambers sent the following correspondence to the parties:
I refer to our previous correspondence below and note that you have failed to comply
with the Fair Work Commission’s Directions and failed to provide any satisfactory
explanation for your non-compliance with the Directions.
Therefore, unless we receive some communication from you which provides satisfactory
explanation for your failure to comply with the Directions of the Commission by 4:00pm
on Wednesday, 23 November 2022, your matter may be dismissed and/or the matter
deemed resolved and the file will be closed.
[7] On 2 December 2022, having not received a response from the Applicant to the above
email, my Chambers sent the following correspondence to the parties:
Dear Parties,
I note the below correspondence from the Commission, and indicate that Chambers has
not received a response.
The Hearing listed for Tuesday 6 December 2022 is now vacated, and Commission is
considering termination of the Application pursuant to s.587 of the Fair Work Act 2009
(Cth). The following Direction has been made:
1. If the Applicant does not wish for their Application to be dismissed, they are
to file with the Commission, and serve on the Respondent, submissions
outlining why their application should not be dismissed, by 4:00pm Tuesday
6 December 2022.
2. If the Applicant does wish for their Application to be discontinued, to file a
Notice of Discontinuance Form F50.
Please be advised that if you do not respond your matter may be dismissed without
further notice.
[8] On 2 December 2022, the following email from the Applicant was received by my
Chambers:
My apologise for the lack of response.
I was advised by my representatives Employee Dismissals that they would to file a
Notice of Discontinuance Form F50 on my behalf.
They have not been responding to any of my attempts to contacts them either.
Please attempt to reach out to them to request they file this.
Thank you for your assistance in this matter.
[2023] FWC 265
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[9] Shortly after, on 5 December 2022, the following correspondence was sent from the
Applicant to my Chambers:
Please refrain from filing a form of discontinuance until I have sought legal advice on
my options at this time.
[10] The Applicant had an apparent belief that the Commission filed and served documents
such as a Notice of Discontinuance in the matter, and so in clarification, my Chambers sent the
following email to the parties on 5 December 2022:
I note your below emails. Currently, there is no hearing scheduled in the matter, and
Deputy President Cross is considering dismissing your application.
A Notice of Discontinuance is a document filed by the Applicant in a matter to tell the
Commission that they do not want to proceed with their application. It can be filed by
either a party or their representative. Please note that the Commission does not file this
document, and is instead considering dismissing your matter.
Please carefully read the below directions and ensure that you comply by the deadline.
These are the same directions that Chambers had sent you on 2 December 2022, except
that the deadline for the first Direction has been extended by one day to give you some
more time to respond.
The Applicant is directed as below:
1. If the Applicant does not wish for their Application to be dismissed, they are to
file with the Commission, and serve on the Respondent, submissions outlining
why their application should not be dismissed, by 5:00pm Wednesday 7
December 2022.
If the Applicant does wish for their Application to be discontinued, to file a Notice of
Discontinuance Form F50.
[11] The Applicant sent two further emails on 6 December 2022 and 8 December 2022,
which did not copy in the Respondent. Those emails advised that the Applicant’s representative
was no longer representing the Applicant, or were uncontactable, and sought more time for the
Applicant to provide her materials. The Applicant was requested to forward those emails to the
Respondent, or ensure that they are copied in to the correspondence if it was resent, and advised
that, should those emails not also be sent to the Respondent that they will not be considered. As
those emails were not forwarded to the Respondent or resent in an alternative form, I have not
considered those emails in these reasons.
[12] To date, no further correspondence has been received by my Chambers in the matter,
and no submissions have been filed in respect of s.587 of the Act as requested.
Relevant Legislation
[13] Section 587 of the Act provides:
[2023] FWC 265
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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.
Consideration
[14] The words, “Without 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).
[15] In the circumstances, I have decided to dismiss the application for want of prosecution
pursuant to s.587(3)(a) of the Act.
[16] An order to that effect will issue with this decision.
OF THE FAIL WORK NOISSINN THE SEAS OF THE
[2023] FWC 265
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DEPUTY PRESIDENT
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PR750088
