Benjamin McShane v Strive Community Services

[2024] FWC 2372

[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.

1. 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).

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

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

1. 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.”

1. 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]).

1. 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).

1. 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.

1. 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.

1. 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR778903>