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 24 December 2024, Mr Junjie Cai made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] Mr Cai did not attend his telephone conciliation that was scheduled for 31 January 2025.

• [3] Commission staff tried to contact Mr Cai on 31 January, 5 February and 18 February 2025 about whether he wants to continue his unfair dismissal claim.. Mr Cai 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 Cai 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 Cai's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Junjie Cai on 24 December 2024 is dismissed.

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