Anthony Thomas v Australian Ilmenite Resources Pty Limited Summary

[2025] FWC 3019

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Thomas
v

Australian Ilmenite Resources Pty Limited

(U2025/9078)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2025

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

On 26 May 2025, Mr Antony Thomas made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The information provided in Mr Thomas’ application raised a concern about whether the application was filed within the 21 day time limit.

Commission staff wrote to Mr Thomas on 20 June and 8 July 2025 about this concern.

To date no response has been received. On 27 June 2025 Mr Thomas’ support person telephoned the Commission and advised they were told that they were within time. Commission staff asked that Mr Thomas provide further information by email.

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 Thomas 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 Thomas’ application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Antony Thomas on 26 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Anthony Thomas v Australian Ilmenite Resources Pty Limited, the Fair Work Commission dismissed Mr Thomas' unfair dismissal application on the basis that it was filed out of time and that Mr Thomas failed to respond to the Commission's inquiries regarding the timeliness of his application. The dispute arose when Mr Thomas filed an unfair dismissal application under section 394 of the Fair Work Act 2009, and there were concerns about whether the application was made within the required 21-day period. The Commission subsequently sought further information from Mr Thomas, but he did not respond, leading to the application being dismissed under section 587 of the Act.

The legal issue before the Commission was whether Mr Thomas' failure to respond to the Commission's inquiries and provide the requested information justified the dismissal of his application under section 587 of the Act. Section 587 allows the Commission to dismiss an application if it appears that the applicant is no longer willing to participate in their own case. The Commission considered whether Mr Thomas' conduct demonstrated a lack of willingness to pursue the application and whether he had been given a sufficient opportunity to respond to the concerns raised by the Commission.

The Deputy President of the Fair Work Commission, Easton, determined that Mr Thomas had indeed been given the opportunity to respond to the concerns about the timeliness of his application, but he failed to do so. The Deputy President concluded that Mr Thomas' conduct showed that he was no longer willing to participate in his own case, and therefore, the application should be dismissed under section 587 of the Act. The Deputy President found that the facility under section 587 could and should be engaged to dismiss Mr Thomas' application.

The Fair Work Commission dismissed Mr Thomas' unfair dismissal application under section 394 of the Fair Work Act 2009. The Deputy President ordered that the application made by Mr Thomas on 26 May 2025 be dismissed. The decision highlights the importance of timely and responsive conduct by applicants in proceedings before the Commission and underscores the Commission's authority to dismiss applications that are not pursued diligently by the applicant.

Anthony Thomas v Australian Ilmenite Resources Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established