Fair Work Act 2009

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 6 December 2024, Mr Tristan Prosser made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

• [2] A telephone conciliation conference was scheduled to take place on 8 January 2025. The conference was adjourned at the last minute at Mr Prosser's request. A further conference was scheduled for 7 February 2025 however Mr Prosser failed to attend.

• [3] Commission staff tried to contact Mr Prosser on 7 February and 18 February 2025 about whether he wants to continue his unfair dismissal claim. Mr Prosser has not responded to the Commission's correspondence.

• [4] 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]).

• [5] I am satisfied that Mr Prosser has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Prosser's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Tristan Prosser on 6 December 2024 is dismissed.

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