Bradley McIver v P & G Body Builders Pty Ltd

[2025] FWC 549

[2025] FWC 549

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Bradley McIver
v

P & G Body Builders Pty Ltd

(U2024/13353)

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.

1. Mr Bradley McIver was employed by P & G Builders Pty Ltd until he was dismissed on 4 November 2024. On 7 November 2024, Mr McIver filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

1. The Respondent was placed in liquidation on 5 November 2024. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

“After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

1. On 2 January 2025 correspondence was sent to Mr McIver about these matters and included the following invitation:

“The Deputy President is prepared to hold the claim open for a reasonable period to allow you to apply to a court for leave (i.e. permission to continue your claim) if that is what you want to do.”

1. An SMS was also sent to Mr McIver telling him that an important email had been sent. Mr McIver has not responded.

1. 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]).

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. For several weeks Mr McIver has been on notice of a significant obstacle that most likely prevents him from continuing his case – being the operation s.500(2) of the Corporations Act 2001 (Cth). Mr McIver has not discontinued his application and has not responded at all to the Commission’s inquiries.

2. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr McIver’s application for want of prosecution, and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Bradley McIver on 7 November 2024 is dismissed

DEPUTY PRESIDENT

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