Alan Wilson v Golding Contractors

[2025] FWC 861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alan Wilson
v

Golding Contractors

(U2024/15308)

DEPUTY PRESIDENT EASTON

SYDNEY, 27 MARCH 2025

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

On 19 December 2024, Mr Alan Wilson made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Wilson’s application raised a concern about whether his application was filed within the 21-day time limit.

Commission staff tried to contact Mr Wilson on 21 January, 7 February, 11 February, 12 February and 25 February 2025 about this concern. Mr Wilson has not responded to the Commission’s correspondence and voice message.

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]).

I am satisfied that Mr Wilson 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 Wilson’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Alan Wilson on 19 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Alan Wilson filed an unfair dismissal application with the Fair Work Commission under s.394 of the Fair Work Act 2009. The application was made on 19 December 2024, and concerned whether the application was filed within the required 21-day time limit. Despite multiple attempts by Commission staff to contact Mr Wilson to address this concern, Mr Wilson did not respond to any of the correspondence or voice messages.

The legal issue the Commission had to decide was whether Mr Wilson’s failure to respond to correspondence regarding his application justified dismissing the application under s.587 of the Fair Work Act for want of prosecution. Section 587 of the Fair Work Act allows the Commission to dismiss an application on its own initiative if the applicant's conduct or omissions show that they are no longer willing to participate in their own case. The case of Viavattene v Health Care Australia provided a precedent for this issue, where the Commission found that if an applicant fails to respond to communications, it may be inferred that they are not willing to pursue their case.

The Deputy President concluded that Mr Wilson had been given ample opportunity to present his case and had failed to respond to any attempts to contact him. Consequently, the Deputy President was satisfied that the application could be dismissed under s.587 of the Fair Work Act. The application was dismissed, and no further action will be taken regarding Mr Wilson’s unfair dismissal claim.

CaseChat Overview and Summary

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Background to the litigation

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