s 773 - Termination of employment

Freedom Financial Superannuation Solutions Pty Ltd

Application to deal with an unlawful termination dispute - dismissal under s 587(1)(c) at the Commission's initiative for want of prosecution.

• [1] On 10 March 2025, Mr Joseph Arnold (the Applicant) made an unlawful termination application to the Fair Work Commission under s 773 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant identified that Freedom Financial Superannuation Solutions Pty Ltd was the Respondent employer. This therefore gave rise to a concern that the Respondent may not be a National System Employer.

• [3] On 10 March, Commission staff contacted the Applicant by email and telephone noting that if the Respondent was a National System Employer, he may have brought the wrong application given the availability of a general protections application (and other applications that deal with dismissal). In a telephone call with a Commission staff member, the Applicant said he would review his application and contact the Commission as to whether he would continue with his application.

• [4] On 17 March 2025, the Applicant was contacted by telephone. He advised that he wished to continue his application. Commission staff raised the possible National System Employer issue once again and asked if the Applicant wished to discontinue. The Applicant said he would think about it.

• [5] Since then, the Applicant has not responded to further efforts made to contact him by email and SMS on 21 March 2025 and 4 April 2025, in which he was directed to respond by 28 March 2025 and 7 April 2025 respectively.

• [6] The Applicant has been on notice since 21 March 2025 of the likely consequences for his application should he fail to respond.

• [7] 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]).

• [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 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 Joseph Arnold on 10 March 2025 is dismissed.

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