Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application dismissed.

• [1] On 9 January 2025, Mr Jordan Spyro made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) against RBP Group Pty Ltd.

• [2] RBP Group Pty Ltd was placed into liquidation on 4 February 2025. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

"After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes."

• [3] On 19 February 2025 correspondence was sent to Mr Spyro about these matters and included the following invitation:

"Deputy President Easton is prepared to give you time to decide what to do about your application.

Could you please tell us by reply email by no later than 4:00pm on Friday 28 February 2025:

• - that you have made an application to a Court for leave/permission to continue your claim; OR

• - that you want to discontinue your unfair dismissal application."

• [5] 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]).

• [6] 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

(b) the application is frivolous or vexatious; or

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

• [7] To date Mr Spyro has not provided a response regarding the continuation of his application or taken any steps to pursue his claim.

• [8] For several weeks Mr Spyro has been on notice of a significant obstacle that most likely prevents him from continuing his case - being the operation s.500(2) of the Corporations Act 2001 (Cth). Instead of discontinuing his application or mounting an argument as to how his claim can lawfully continue.

• [9] In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Spyro's application for want of prosecution, and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Jordan Spyro on 9 January 2025 is dismissed.

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