s.365 - Application to deal with contraventions involving dismissal

s 365 - Application to deal with contraventions involving dismissal - Application dismissed under s 587 of the Act

[1] This is a decision to dismiss Mr Josli Paul Santos' application under s 587 of the Fair Work Act 2009 (Cth).

[2] On 29 September 2025, Mr Santos applied under s 365 of the Act for the Commission to deal with a dismissal dispute in relation to his employment with St Vincent's Private Hospitals Ltd (the respondent/employer).

[3] Section 587(2) of the Act provides that the Commission must not dismiss applications under s 365 of the Act on the grounds that the application is frivolous or vexatious (587(1)(b)), or that it has no reasonable prospects of success (587(1)(c)). But the Commission can dismiss s 365 applications if an application is not made in accordance with the Act (587(1)(a)). Further, s 587 clearly provides that the 3 listed 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. (Viavattene v Health Care Australia [2013] FWCFB 2532 at [39])

[4] The Commission may dismiss an application under s 587 on its own initiative or on application by a respondent. The respondent made an application on 8 January 2026.

[5] I am satisfied that Mr Santos has demonstrated that he does not intend to participate in his application.

[6] After this matter was allocated to me, I listed it for a case management conference, initially on 28 November 2025. I adjourned the case management conference to 17 December 2025; the adjournment was on Mr Santos' request. Mr Santos did not attend the case management conference on 17 December 2025. The respondent did attend the case management conference. My chambers emailed Mr Santos twice prior to the start of the case management conference to require his attendance. We were unable to telephone Mr Santos.

[7] Despite Mr Santos' non-attendance, I nevertheless conducted case management. This was because there were 2 preliminary and interrelated issues in Mr Santos' application, which were (1) whether he was dismissed, and (2) whether his application was made within the 21-day period required under s 366 of the Act. As the applicant's and respondent's material agreed that the last date that Mr Santos had worked at St Vincent's was 24 April 2025, I concluded that it was appropriate to first and separately consider whether the application was made within time and issued directions. Mr Santos was informed of what occurred at the case management conference and provided with my directions on 22 December 2025.

[8] Also on 22 December 2025, my chambers informed Mr Santos of the Commission's power to dismiss his application, and required him to confirm that he intended to participate in his application and explain why he failed to attend.

[9] Mr Santos did not reply to my chambers email of 22 December 2025 and nor has he filed any material in accordance with my directions of 22 December 2025.

[10] I am therefore satisfied that Mr Santos has demonstrated that he is no longer willing to participate in or prosecute his case, and I dismiss his application under s 587 of the Act.

[11] Although I have dismissed his application under s 587, I indicate that I would not have found that there were exceptional circumstances so as to allow a further period for Mr Santos to file his application. Mr Santos filed some materials relevant to the issue of his late filing with his application. Taking his employment end date as 24 April 2025, his application filed on 29 September 2025 was 137 days (more than 4 months) after the statutory period (15 May 2025). I do not consider that Mr Santos provided acceptable reasons for the very significant delay in making this application, and this weighs heavily against a finding of exceptional circumstances. Mr Santos' reasons for his delay in filing his application include that he was participating in other proceedings against another employer, that he was unwell and that he had sought to resolve the matter internally before making this application. I also note that Mr Santos had made an earlier application against this same employer that was within time. That matter (C2025/3508) had also been allocated to me. On 27 May 2025, Mr Santos discontinued his application shortly before the scheduled conference.

[12] For completeness, I indicate that a further matter of Mr Santos' had been allocated to me (U2025/15746), and I dismissed it on 7 November 2025 in [2025] FWC 3327.

[13] I order that Mr Josli Paul Santos' application for the Commission to deal with a dismissal dispute under C2025/9964 made on 29 September 2025 be dismissed.

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