s.394 - Unfair dismissal

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

• [1] On 27 November 2024, Mr Marko David made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) against Malua Building Co. Pty Ltd.

• [2] Malua Building Co. Pty Ltd was placed into liquidation on 28 November 2024. 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 12 February 2025 Commission staff sent correspondence to Mr David about these matters and asked him to indicate whether he has made an application to a Court for leave to continue his claim, or whether he wants to discontinue is unfair dismissal claim:

• [4] On 10 March 2025 Mr David's support person emailed the Commission to advise, "Mr David was travelling and did not have access to his phone/emails in regard to this matter. Mr David would appreciate continuing this matter for an 'unfair dismissal claim', given that requests for his Fair Entitlements Guarantee have yet to be met by the Liquidator".

• [5] The response received did not provide the relevant information regarding whether an application had been made to a Court.

• [6] 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]).

• [7] 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.

• [8] To date Mr David has not provided a response regarding the continuation of his application or taken any steps in a Court that would allow him to pursue his unfair dismissal claim in the Commission.

• [9] For several weeks Mr David has been on notice of the 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, Mr David has simply advised that he would like to continue his claim.

• [10] In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr David'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 Marko David on 27 November 2025 is dismissed.

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