Benjamin Jackson v Ian Boileau Summary

[2025] FWC 545

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin Jackson
v

Ian Boileau

(U2024/12691)

DEPUTY PRESIDENT EASTON

SYDNEY, 21 FEBRUARY 2025

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

On 24 October 2024, Mr Benjamin Jackson made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 15 November 2024, Mr Jackson did not attend at the listed time.

Since then Mr Black has not responded to any of the Commission’s attempts to contact him or taken any steps to prosecute his/her case.

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 Jackson has had the opportunity to put a case for consideration on all matters material to the making of 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 Jackson’s application.

I have therefore decided to make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Benjamin Jackson on 24 October 2024 is dismissed.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Benjamin Jackson lodged an application for unfair dismissal against his employer, Ian Boileau, with the Fair Work Commission on 24 October 2024. The application was made under section 394 of the Fair Work Act 2009, and a conciliation conference was scheduled for 15 November 2024. However, Mr Jackson failed to attend the conference and has since not responded to any attempts by the Commission to contact him or take any further steps to prosecute his case. The Commission has the authority under section 587 of the Act to dismiss an application on its own initiative in the early stages of the proceedings for want of prosecution. This authority can be exercised if the applicant's conduct or omissions show that they are no longer willing to participate in their own case.

The legal issue before the Deputy President was whether Mr Jackson's failure to attend the conciliation conference and subsequent inactivity in prosecuting his case demonstrated a lack of willingness to participate in his own proceedings, thereby justifying the application of section 587. The Deputy President found that Mr Jackson had been given ample opportunity to present his case and had failed to take any steps to prosecute it. The Deputy President concluded that the facility under section 587 could and should be engaged, and the application dismissed accordingly. The Deputy President noted that the dismissal was not a reflection on the merits of Mr Jackson's case but rather on his failure to pursue it.

In light of the above, the Deputy President dismissed Mr Jackson's application for unfair dismissal under section 394 of the Fair Work Act 2009. This decision was made on the basis that Mr Jackson had not demonstrated a willingness to participate in his own proceedings, and his application had been effectively abandoned. The dismissal is without prejudice to Mr Jackson's right to re-lodge an application if he chooses to do so in the future.

Benjamin Jackson v Ian Boileau

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established