Benjamin McShane v Strive Community Services

[2024] FWC 2372

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin McShane
v

Strive Community Services

(U2024/6936)

DEPUTY PRESIDENT EASTON

SYDNEY, 3 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed.

Mr Benjamin McShane was employed by Strive Community Services until he was dismissed 29 May 2024. On 17 June 2024, Mr McShane filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 24 July 2024 however Mr McShane did not attend.

Since then Mr McShane has not responded to any of the Commission’s attempts to contact him.

Section 587 of the Act provides:

“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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr McShane’s application. Mr McShane has not provided any reasons for his non-compliance despite receiving ample communication and opportunity to do so.

Mr McShane has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite likely that he has abandoned his application.

For these reasons I have decided to dismiss Mr McShane’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR778904).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dismissed an application for an unfair dismissal remedy brought by Benjamin McShane against his former employer, Strive Community Services. Mr McShane was dismissed on 29 May 2024 and filed an application for unfair dismissal on 17 June 2024. Despite a scheduled conciliation conference on 24 July 2024, Mr McShane did not attend and has since ceased all communication with the Commission. The Deputy President, Easton, found that Mr McShane's application could be dismissed under section 587 of the Fair Work Act 2009, which allows for the dismissal of an application if it appears that the applicant has abandoned it. Mr McShane's lack of response to the Commission's inquiries and communications indicated that he had likely abandoned his application.

The legal issue before the Deputy President was whether Mr McShane's application could be dismissed due to his non-participation and lack of response. Section 587 of the Act provides that the Fair Work Commission may dismiss an application if it has no reasonable prospects of success, is frivolous or vexatious, or is not made in accordance with the Act. In this case, the Deputy President found that Mr McShane's failure to engage with the proceedings constituted non-compliance with the Act and that his application had no reasonable prospects of success. Furthermore, the Deputy President noted that Mr McShane had been made aware of the potential consequences of his non-participation and still chose to cease communication with the Commission.

The Deputy President concluded that the application should be dismissed on the Commission's own initiative, utilising the power provided by section 587(3)(a) of the Act. The decision was made in accordance with procedural fairness, ensuring that Mr McShane was given adequate opportunity to respond to the Commission's inquiries. The Deputy President dismissed the application for want of prosecution, meaning that Mr McShane had effectively abandoned his claim for unfair dismissal. An order to this effect has been made, documented as PR778904.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established