Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Failure to participate - Dismissed under s 587 of the Act

[1] This is a decision to dismiss the application for an unfair dismissal remedy made by Mr Austyn Leggett on 5 November 2025 under s 587 of the Fair Work Act 2009 (Cth).

[2] This is a matter in which neither party appears to wish to continue to participate in the application. Neither party attended a conciliation listed before an FWC staff conciliator. Neither party attended a case management conference that I had scheduled for 4 March 2026. The respondent failed to file its response Form F3 as required by my directions (emailed to the parties on 28 January 2026). The applicant failed to file any materials as required by my directions. The applicant has not responded to any telephone calls or correspondence from the Commission, including correspondence from my chambers informing him that he risked this matter being dismissed if he did not respond.

[3] The only contact the Commission has had with the parties is that, after I issued directions in this matter, the respondent informed my chambers that they expected the applicant to file a discontinuance.

[4] The Commission can dismiss an application under s 587 if an application is not made in accordance with the Act, it is frivolous or vexatious or if it has no reasonable prospects of success. But these grounds do not limit the Commission's power to dismiss an application. The Full Bench in Viavattene v Health Care Australia [2013] FWCFB 2532 at [39] said that the Commission can also dismiss an application "where an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative."

[5] I do not see any reason why the Commission should persist with attempting to deal with an application where neither party participates. The parties have been provided with multiple opportunities to indicate whether they intend to participate. They have been informed of the consequences of failing to respond. They have not responded. I dismiss the application.

[6] Under section 587 of the Fair Work Act 2009 (Cth), I order that Mr Austyn Leggett's application for an unfair dismissal remedy under FWC Matter U2025/17600 made on 5 November 2025 be dismissed.

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