s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed under s 587

• [1] This is a decision to dismiss Mr Daniel Mesa's application for an unfair dismissal remedy under s 587 of the Fair Work Act 2009 (Cth). Mr Mesa filed an application under s 394 of the Act on 22 August 2025. Mr Mesa alleged that he was unfairly dismissed by Home Care Footscray Pty Ltd. I dismiss Mr Mesa's application as he has failed to prosecute it and it has no reasonable prospects of success.

• [2] Section 587 of the Act says:

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 - 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [3] The Full Bench in Viavattene v Health Care Australia [2013] FWCFB 2532 at [39] said that the above grounds do not limit the Commission's power to dismiss an application, and the Commission can also dismiss an application where

an applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.

• [4] I dismiss Mr Mesa's application because I am satisfied that it has no reasonable prospect of success and he has demonstrated an unwillingness to participate in these proceedings.

• [5] Mr Mesa has failed to file any materials as required by my directions. He was informed of the failure and the consequences of such failure by emails on 5 and 12 November 2025. There is nothing from which I could make any factual findings in order for Mr Mesa to succeed in his application.

• [6] Mr Mesa has also demonstrated an unwillingness to participate in these proceedings. He has not replied to any correspondence of the Commission. Also, he failed to attend a case management conference. My associate telephoned him at the commencement of the case management conference. He did not answer. My chambers informed Mr Mesa of the potential that his application would be dismissed because he did not file materials nor attend the case management conference on 11 November 2025. He was provided with an opportunity to explain why he did not attend nor file his materials. Mr Mesa has not provided any explanation by my further deadline (14 November 2025) nor to date.

• [7] The respondent also failed to attend the case management conference and did not reply to correspondence. This is entirely unsatisfactory. The consequences for a respondent's failure to comply or attend or participate in proceedings is that it could be determined in their absence (see s 600 of the Act) and without their input.

• [8] For the above reasons, I am satisfied that it is appropriate to dismiss Mr Mesa's application and do so under s 587 of the Act.

• [9] I order that the application for an unfair dismissal remedy under matter number U2025/13559 filed by Mr Daniel Mesa on 22 August 2025 be dismissed under section 587 of the Fair Work Act 2009 (Cth).

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