s.394 - Unfair dismissal

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

• [1] On 5 August 2024, Mr Peter Martin made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] On 12 September 2024 Commission staff were advised that the parties had reached an in-principle agreement to resolve Mr Martin's application.

• [3] Commission staff attempted to contact Mr Martin on 15 and 29 October, 13 November 2024, 21 January and 11 March 2025 by telephone, SMS and email.

• [4] On 16 October 2024, Mr Martin contacted the Commission seeking legal advice about the settlement reached and was advised to ring his representative. Mr Martin emailed the Commission on 22 January 2025 to advise that Iconic Columns & Structures Pty Ltd had not complied with the agreed contract.

• [5] Mr Martin's representative filed a Form F54 ceasing to act on 21 January 2025.

• [6] Iconic Columns & Structures Pty Ltd provided a response to the Commission's email to advise that the payment will made by instalments which will be completed by 28 February 2025.

• [7] Since then Mr Martin has not discontinued his application or taken any steps to prosecute his case.

• [8] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings for want of prosecution. 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]).

• [9] I am satisfied that Mr Martin has been on notice that his application could be dismissed under s.587 and has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application.

• [10] In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Martin's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Peter Martin on 5 August 2024 is dismissed

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