s 394 - Application for unfair dismissal remedy

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

• [1] On 13 November 2024, Mr Dylan Kinshela (the Applicant) filed an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Projex Management & Construction Pty Ltd until he was dismissed on 5 November 2024.

• [2] On 3 December 2024, Commission staff emailed the parties notifying them that the matter was listed for telephone conciliation conference at 11:15 AM (WA Time) on 19 December 2024. On 18 December 2024, parties were sent an SMS reminder regarding the telephone conciliation conference.

• [3] The Applicant did not attend the telephone conciliation conference on 19 December 2024.

• [4] On 4 February 2025, an email was sent to the Applicant in relation to his non-attendance at the listed conciliation and Projex Management & Construction Pty Ltd being in administration. The Applicant was required to respond to the email from Deputy President Easton's Chambers by 12 February 2025. An SMS was also sent to the Applicant on 4 February 2025, informing him that an important email had been sent. The Applicant was informed that if he did not contact the Commission by 12 February 2025, the Commission would likely dismiss his application without further notice to him.

• [5] On 4 February 2025, the Applicant responded with 'Yes, I am still interested'. However, he did not address what was required in the Commission's email dated 4 February 2025.

• [6] On 13 February 2025, the legal representative of the Administrators emailed the Commission, informing the Commission and the Applicant that a deed of company arrangement (DOCA) had been executed on 6 January 2025 and that the Respondent company was subject to that DOCA.

• [7] A further email and SMS were sent to the Applicant on 27 February 2025, directing the Applicant to respond to the issue of the DOCA (having explained the implications of the DOCA). The Applicant was required to respond by 7 March 2025.

• [8] On 19 March 2025, a final notice was emailed to the Applicant who was advised that his application may be dismissed without further notice if he did not respond by 28 March 2025. An SMS was also sent to the Applicant on 19 March 2025 telling him that an important email had been sent.

• [9] The Applicant has not responded to the Commission's attempts to contact him on 27 February 2025 and 19 March 2025 or taken any steps to prosecute his case.

• [10] Section 587 of the Act provides:

(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

(c) the application has no reasonable prospects of success.

• [11] Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words "w_ithout limiting when FWC may dismiss an application_" in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).

• [12] 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]).

• [13] In the circumstances, I am satisfied that the facility under s 587 can and should be engaged to dismiss the application.

• [14] The Applicant has been on notice since 27 February 2025 of the likely consequences for his application if he did not respond to the Commission's inquiry and it is quite possible that he has abandoned his application.

• [15] For these reasons, I have decided to dismiss the application on my own initiative for want of prosecution, utilising the facility provided by s 587(3)(a) of the Act. I make the following order:

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Dylan Kinshela on 13 November 2024 is dismissed.

Printed by authority of the Commonwealth Government Printer