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 4 February 2025, Mr Cristian Ricardo Chavarro Pardo (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant's Form F2 application indicated that his dismissal took effect on 4 December 2024 and correctly acknowledged that his application was not made within 21 days of his dismissal.

• [3] It is observed that a Mr David Castro appears to have initially filed the application on behalf of the Applicant, the Form F2 identifying that the Applicant required a Spanish interpreter. On 19 February 2024, the Chambers of Deputy President Easton emailed Mr Castro explaining that the Applicant's details would need to be entered into the Applicant's field on the Form F2. After correspondence between Chambers and the Applicant, on 28 February 2025, the Applicant requested that the name on the Form F2 be changed to that of the Applicant.

• [4] It is observed that whilst the Applicant had indicated in his Form F2 that he required a Spanish interpreter, the Commission had reached out on multiple occasions by both email and SMS, requesting that the Applicant contact the Commission. On 20 February 2025, the Applicant responded to one such request noting that he had not received emails sent and providing an up-to-date email address. It was therefore not the case that the Applicant was unable to respond to the Commission's communications.

• [5] Returning to the out of time issue, the Chambers of Deputy President Easton emailed the Applicant on 4 March 2025 directing him to respond by 14 March 2025 explaining why he considered that there were exceptional circumstances to justify the out of time application. Commission staff sent an SMS that same day alerting the Applicant to the correspondence. Chambers received no response from the Applicant.

• [6] The Chambers of Deputy President Easton emailed the Applicant on 31 March 2025 noting the lack of response and notifying the Applicant that Deputy President Easton was considering dismissing his application under s 587 of the Act. The Applicant was directed to inform Chambers whether his wished to continue the application and, if he did, to explain his lack of response to earlier correspondence and directions, by close of business on 4 April 2025. Commission staff sent an SMS on 31 March 2025 alerting the Applicant to the correspondence. Chambers has at the time of writing, received no response from the Applicant.

• [7] Section 587 of the Act 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]).

• [8] I am satisfied that the Applicant has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s 587 of the Act. In the circumstances, I am satisfied that the facility under s 587(3)(a) can and should be engaged to dismiss the application. I make the following order:

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Cristian Ricardo Chavarro Pardo on 4 February 2025 is dismissed.

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