s.394 - Unfair dismissal

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

• [1] On 19 December 2024, Mr Alan Wilson made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] Mr Wilson's application raised a concern about whether his application was filed within the 21-day time limit.

• [3] Commission staff tried to contact Mr Wilson on 21 January, 7 February, 11 February, 12 February and 25 February 2025 about this concern. Mr Wilson has not responded to the Commission's correspondence and voice message.

• [4] 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]).

• [5] I am satisfied that Mr Wilson 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 Mr Wilson's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Alan Wilson on 19 December 2024 is dismissed.

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