Andy Batt v Bendo Group Pty Ltd

[2025] FWC 185

[2025] FWC 185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andy Batt
v

Bendo Group Pty Ltd

(U2024/14432)

COMMISSIONER YILMAZ MELBOURNE, 21 JANUARY 2025

Application for an unfair dismissal remedy – matter dismissed under s.587 at the Commission’s initiative

1. On 3 December 2024, Mr Andy Batt (the Applicant) filed an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Batt alleges he was unfairly dismissed by the Respondent, Bendo Group Pty Ltd (BG or the Respondent) on 13 November 2024.

1. Mr Batt failed to attend the scheduled case-management conference/hearing (Mention/Directions) at 1pm on Thursday 16 January 2025.  

1. My Chambers emailed Mr Batt requesting he join the Mention/Directions. After receiving no response and still no appearance from the Applicant, a further two phone calls were placed to Mr Batt from my Chambers leaving messages that his failure to appear at the scheduled Mention/Directions may risk his application being dismissed. Mr Batt did not respond.

1. My Chambers also called Mr Batt’s legal representative. His lawyer advised that she no longer held instructions to act on Mr Batt’s behalf, however she would message him to remind him of the Mention/Directions.

1. Subsequently, I directed my Chambers to email Mr Batt requiring he provide an explanation for his non-attendance in writing by 17 January 2025. I warned the Applicant that failure to provide an explanation may result in the matter being dismissed and a public decision being issued on the basis of failure to participate and prosecute his application. A response to this email was not received.

1. On 17 January 2025, my Chambers again emailed Mr Batt regarding his failure to attend the Mention/Directions, asking for an explanation for his non-attendance and giving him until midday Monday, 20 January 2025 to provide an explanation, otherwise his application will be dismissed. Mr Batt did not contact my chambers.

The Legislation

1. Section 587 of the Act concerns the power of the Commission to dismiss an application for a remedy for contraventions of part 3-1 of the Act: 

“587 Dismissing applications

(1)Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)the application is not made in accordance with this Act; or

(b)the application is frivolous or vexatious; or

(c)the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)   is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.”

1. Having considered Mr Batt’s failure to attend the scheduled proceeding or to respond to the Commission’s phone calls or emails, I am satisfied that his application should be dismissed for want of prosecution.

1. At s.587 of the Act, the words “without limiting when the FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that are not contained in ss. 587(1)(a), (b), (c). The Commission may dismiss on its own motion if it considers that the matter cannot be prosecuted, and the Applicant does not comply with directions or engage with the Commission. I am also satisfied that through the attempts to contact him, Mr Batt was on notice of the risk that his application may be dismissed if he did not engage with the Commission.

1. On this basis, Mr Batt’s application is dismissed for failure to attend the scheduled Mention/Directions or to respond to the attempts to contact him. Due to his failure to engage with the Commission, Mr Batt’s application cannot be prosecuted. Therefore, pursuant to s.587 of the Act, the application is dismissed for want of prosecution.

COMMISSIONER

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