Alexander Kelleher v Santrev - [2025] FWC 2994

[2025] FWC 2994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexander Kelleher
v

Santrev

(U2025/10994)

COMMISSIONER CONNOLLY

MELBOURNE, 15 OCTOBER 2025

Application for an unfair dismissal remedy – application dismissed pursuant to s.587

On 2 July 2025, Mr Alexander Kelleher (the Applicant) lodged an application seeking an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Santrev (the Respondent).

On 5 August 2025, the matter was listed for a conciliation conference before a Commission staff conciliator. Parties were advised of this through a notice of listing issued on 22 July 2025. On 5 August 2025, the conciliation commenced as scheduled and the Respondent and their representative attended. The Applicant did not attend. The Commission made two attempts to call the Applicant within 30 minutes, and a voicemail was left both times, with no contact made. The Respondent agreed to reschedule the conciliation and confirmed understanding that the case would be referred to a Commission member if the Applicant did not attend.

On 22 August 2025, the matter was listed for a second conciliation conference before the same Commission staff conciliator. Parties were advised of this through a notice of listing issued on 5 August 2025. On 22 August 2025, the conciliation commenced as scheduled and the Respondent and their representative attended. The Commission tried to contact the Applicant and left two voicemails; however, the Applicant was not contactable again. The Respondent stated that they wished for the matter to go to a member on the basis that 1) Applicant did not respond to their communication, 2) this is the second non-attendance at conciliation by the Applicant, and 3) for Respondent’s jurisdictional objection to be heard.

The conferences on 5 August 2025 and 22 August 2025 did not take place as the Applicant did not attend.

Subsequently, the matter was allocated to my Chambers on 27 August 2025 for determination.

On 2 September 2025, directions were issued for the filing of submissions and evidence, and the matter was listed for a Mention on 17 September 2025 and set down for a Hearing on 23 October 2025. Paragraph [13] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned.’

On 17 September 2025 at 11:57AM, my Chambers received an email from the Respondent’s representative concerning numerous unsuccessful attempts to contact the Applicant and the unreasonable financial burden placed on the Respondent.

The Applicant did not attend the Mention at 12:30PM on 17 September 2025. By 12:33PM, my Chambers emailed the parties with a Microsoft Teams link. At 12:40PM, my Chambers made two phone calls to the Applicant with no response. The Applicant was also sent the following correspondence ahead of the Mention:

“Dear Parties,

RE: U2025/10994 - Mr Alexander Kelleher v Santrev

In the notice of listing sent on the 2 September 2025, parties were asked to provide Chambers with the names and contact numbers of those attending.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander Kelleher v Santrev

Details

AGLC: Alexander Kelleher v Santrev [2025] FWC 2994
Case: [2025] FWC 2994
Decision Date: 15 OCTOBER 2025

CaseChat Overview and Summary

The Fair Work Commission considered an application for an unfair dismissal remedy brought by Mr Alexander Kelleher against Santrev. Kelleher filed the application on 2 July 2025, seeking a remedy for unfair dismissal under the Fair Work Act 2009. Conciliation conferences were scheduled for 5 and 22 August 2025, but Kelleher failed to attend either session. This non-participation extended to other mandatory processes, including a mention on 17 September 2025, where Kelleher did not attend and no submissions were received by the Commission. Despite repeated communications and warnings, Kelleher did not respond or participate further.

The key legal issue before the Commission was whether to dismiss Kelleher's application for want of prosecution under s.587 of the Fair Work Act. This section empowers the Commission to dismiss an application if it is not pursued as required. The Commission had to determine whether Kelleher's consistent failure to engage with the process justified dismissal. The Commission noted that Kelleher's non-participation had imposed an unreasonable burden on the Respondent, Santrev, and that Kelleher had failed to respond to the Commission's attempts to engage him.

Commissioner Connolly found that Kelleher had demonstrated a clear unwillingness to prosecute his case. The principle of fairness required that both parties be treated equitably, and Kelleher's actions had placed Santrev at a significant disadvantage. Kelleher had multiple opportunities to engage with the process but chose not to, leading the Commission to conclude that the application should be dismissed. The dismissal was made under the broad discretion provided by s.587(1) of the Act, which allows the Commission to dismiss an application on its own initiative.

The application brought by Mr Alexander Kelleher was dismissed for want of prosecution under s.587(3)(a) of the Fair Work Act. This decision reflects the Commission's authority to manage its processes effectively and ensure that both parties are treated fairly. The dismissal ensures that Santrev is not subjected to unnecessary proceedings and costs resulting from Kelleher's lack of engagement.

Orders