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 2 January 2025, Mr Mark Wood made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] Mr Wood did not attend his telephone conciliation that was scheduled for 24 February 2025.

• [3] Commission staff tried to contact Mr Wood on 24 February and 27 February 2025 about whether he wants to continue his unfair dismissal claim. Mr Wood has not responded to the Commission's correspondence and his representative has been unable to reach him.

• [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 Wood 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 Wood's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Mark Wood on 2 January 2025 is dismissed.

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