s.365 - Application to deal with contraventions involving dismissal

Capture Recruitment Pty Ltd, Hickory Building Systems Pty Ltd

Application to deal with contraventions involving dismissal - Applicant did not participate in proceedings - want of prosecution - dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 19 November 2025, Mr Jaydon Spry lodged an application to deal with contraventions involving dismissal under s.365 of the Fair Work Act 2009 (the Act) with the Commission.

[2] The Respondents to Mr Spry's application, Capture Recruitment Pty Ltd and Hickory Building Systems Pty Ltd lodged Form F8A employer responses with the Commission on 10 and 12 December 2025, with Hickory Building Systems objecting to the Application on the basis that Mr Spry was not an employee of the Hickory Building Systems. On a preliminary review of the application, it was not entirely clear to me which Respondent Mr Spry considered had employed him and which Respondents he considered had been involved in his dismissal.

[3] I listed the matter for a case management conference on 2 February 2026, in order to ascertain the basis upon which the application was brought, attend to any amendments to the application and to program the jurisdictional objection by Hickory Building Systems for determination if that remained necessary. The case management conference was attended by representatives for the first and second Respondent, however was not attend by Mr Spry.

[4] When Mr Spry failed to attend the case management conference, my Chambers attempted to call him four times on 2 February. No answer was received and no messages were able to be left owing to the Applicant's already full mailbox.

[5] The case management conference proceeded in My Spry's absence, and Capture Recruitment informed me that the Applicant remained employed with them.

[6] Later that day, my Chambers sent Mr Spry the following correspondence:

RE: C2025/11669 - Mr Jaydon Spry v Capture Recruitment Pty Ltd & Hickory Building Systems Pty Ltd

Your application to the Commission was listed for a case management conference at 4PM today, on videoconference via Microsoft Teams. We attempted to contact you on several occasions this afternoon after you had failed to connect to the video conference.

The purpose of the conference to was gain some understanding of whether you considered you had been dismissed by Capture Recruitment OR by Hickory Building Systems. Hickory Building Systems objects to your application on the basis that it never employed or dismissed you. We were informed by Capture Recruitment today that you are currently performing work for them.

We seek a response from you by no later than 4PM on Friday 6 February 2026 as to:

• Whether you still wish to proceed with your application, and, if so;
• Whether your contention is that you were dismissed by Capture Recruitment; or
• Whether your contention is that you were dismissed by Hickory Building Systems

If you do not respond to us by 4PM on Friday 6 February 2026, we will consider such failure to respond as a further indication that you do not intend to prosecute this matter and dismiss your application accordingly.

[7] The Commission received no response to this correspondence.

[8] 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

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(a) on its own initiative; or

(b) on application.

• [9] It is well established that section 587 of the Act can be utilised on the Commission's own initiative to dismiss a matter for want of prosecution. The Commission is not required to persevere with an application where an Applicant's conduct clearly demonstrates that they are unwilling to participate in their own case.[1]

[10] The Commission is required to provide the Applicant a reasonable opportunity to advance their case, but not an infinite opportunity. The Applicant in this case failed, without explanation, to attend a conference in relation to his application. He has thereafter failed, again without explanation, to engage with the Commission's efforts to clarify the basis of his application and his intentions with respect to pursuing it. It therefore appears on the basis of facts known at this time that the Applicant has stopped participating in the proceeding and does not intend to prosecute his application. I am satisfied that the Applicant was afforded ample opportunity to prosecute his case before the Commission but has failed to do so.

[11] Having considered the provisions set out in s.587 of the Act and the factual circumstances of the case I am satisfied it is appropriate for the application to be dismissed.

[12] Accordingly, I order that Mr Spry's application to deal with contraventions involving dismissal is dismissed pursuant to s. 587(3)(a) of the Act.

[1] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16].

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