Fair Work Act 2009

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 6 January 2025, Mr Calvin Lao made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] Mr Lao did not attend his telephone conciliation that was scheduled for 12 February 2025.

• [3] Commission staff tried to contact Mr Lao on 12, 14, 18 and 24 February 2025 by telephone, email and SMS about whether he wants to continue his unfair dismissal claim. Mr Lao has not responded to the Commission's correspondence.

• [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 Lao 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 Lao's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Calvin Lao on 6 January 2025 is dismissed.

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