s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - respondent in liquidation - no reasonable prospects of success - want of prosecution - application dismissed under s 587

• [1] On 28 January 2025, Mr Orhan Gungor (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act in relation to the termination of his employment by PM & JM Cabinets Pty Limited (the respondent/employer).

• [2] The Commission can dismiss an application on its own initiative under s 587 of the Act if:
  • - an application is not made in accordance with the Act,
  • - it is frivolous or vexatious, or
  • - if it has no reasonable prospects of success.

• [3] But these grounds do not limit the Commission's power to dismiss an application, and the Commission can also dismiss an application because the Commission is not required to:

"persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative."[1]

• [4] I am satisfied that Mr Gungor's application has no reasonable prospects of success, as the respondent is now in liquidation. I am also satisfied that he has failed to prosecute his application, as he has not replied to any correspondence of the Commission's or engaged with his application other than the initial filing of the Form F2, which was filed after the expiry of the 21-day statutory time limit.

• [5] On 18 February 2025, Altan Djenab of Wild Apricot Corporate and Insolvency Services replied to correspondence of the Commission's to advise that they had been appointed liquidator of the respondent, provided the Notice of Appointment and referred (incorrectly) to s 471B of the Corporations Act 2001. The liquidator had been appointed by resolution of members (that is, a voluntary winding up); s 471B relates to winding up by a Court.

• [6] Also on 18 February 2025, my Chambers wrote to Mr Gungor to inform him that s 500 of the Corporations Act 2001 prevented the continuation of his application for an unfair dismissal remedy unless he obtained the permission of the Court. We informed him that I was prepared to hold his matter open for a reasonable period to allow him to do so and asked him to tell us whether he intended to seek leave of a Court to continue with his application. We also informed him that if he did not apply for or obtain leave, I would consider dismissing his application under s 587 of the Act. Mr Gungor did not reply.

• [7] My Chambers wrote to Mr Gungor again on 26 February 2025 and 12 March 2025. In the email on 12 March 2025, Mr Gungor was informed that if we did not hear from him by 17 March 2025, his application would be dismissed. To date, Mr Gungor has not replied.

• [8] Mr Gungor's application cannot proceed further without the leave of the Court. An application for an unfair dismissal remedy under s 394 is a "civil proceeding"[2] within the meaning of s 500 of the Corporations Act 2001, but the Commission is not a Court[3] and cannot grant the leave required under that section for the application to continue. Further, he has failed to inform the Commission of whether he intends to seek leave. He has failed to reply to any correspondence of the Commission's or made any contact with the Commission since he filed his application on 28 January 2025.

• [9] I am satisfied that Mr Gungor's application has no reasonable prospects of success and that he has failed to prosecute his application. So, I dismiss it under s 587 on my own initiative.

• [10] For the above reasons, I ordered that the application for an unfair dismissal remedy filed by Orhan Gungor on 28 January 2025 be dismissed under s 587 of the Act.

[1] Viavattene v Health Care Australia [2013] FWCFB 2532 at [39].

[2] Silalahi v CMI Industrial (Forge) [2012] FWA 7275 at [11]- [16].

[3] Smith v Trollope Silverwood & Beck Pty Ltd (2003) 142 IR 137.

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