Caleb Kokkin v JGP Electrical CQ Pty Ltd Summary

[2025] FWC 629

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Caleb Kokkin
v

JGP Electrical CQ Pty Ltd

(U2024/15440)

DEPUTY PRESIDENT EASTON

SYDNEY, 28 FEBRUARY 2025

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

On 21 December 2024, Mr Caleb Kokkin made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Kokkin’s application was filed outside the 21 day time limit. Commission staff tried to contact Mr Kokkin on 23 January and 17 February 2025 about this concern by email and SMS. Mr Kokkin has not responded to the Commission’s correspondence.

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 Kokkin 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 Kokkin’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Caleb Kokkin on 21 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dismissed Mr Caleb Kokkin's unfair dismissal application against JGP Electrical CQ Pty Ltd under section 394 of the Fair Work Act 2009. Mr Kokkin's application was filed outside the statutory time limit, and the Commission attempted to contact him multiple times to address this concern. Despite these efforts, Mr Kokkin did not respond to the Commission's correspondence. The Commission found that Mr Kokkin's failure to engage with the proceedings constituted a lack of willingness to participate in his own case, which justified dismissal under section 587(1)(c). The Deputy President concluded that Mr Kokkin had been given ample opportunity to present his case and that the application should be dismissed for want of prosecution.

The primary legal issue in this matter was whether Mr Kokkin's application could be dismissed under section 587(1)(c) of the Fair Work Act for want of prosecution. The Commission had to determine whether Mr Kokkin's failure to respond to correspondence and his delayed application filing constituted a lack of willingness to pursue his case. The decision hinged on whether Mr Kokkin had been given sufficient opportunity to present his case and whether his conduct justified the application's dismissal. The Commission referenced Viavattene v Health Care Australia to support its reasoning that an applicant's inaction could warrant dismissal if it demonstrated a lack of interest in pursuing the case.

The Deputy President found that Mr Kokkin's failure to respond to the Commission's correspondence and his delayed filing of the application indicated a lack of willingness to pursue his unfair dismissal claim. The Commission had made reasonable efforts to contact Mr Kokkin, but he did not engage with the proceedings. The Deputy President was satisfied that Mr Kokkin had been afforded the opportunity to present his case and that his lack of response justified the dismissal of his application. The decision was made in accordance with section 587(1)(c) of the Fair Work Act, which allows for the dismissal of an application if the applicant's conduct or omissions demonstrate that they are no longer willing to participate in their own case.

The Fair Work Commission dismissed Mr Caleb Kokkin's application for an unfair dismissal remedy. The Deputy President found that Mr Kokkin's conduct demonstrated a lack of willingness to pursue his case, and his failure to respond to the Commission's correspondence and delayed application filing justified the dismissal. The Commission had attempted to contact Mr Kokkin multiple times to address the concerns about the late filing, but he did not engage with the proceedings. The decision was made under section 587(1)(c) of the Fair Work Act, and the application was dismissed for want of prosecution.

Caleb Kokkin v JGP Electrical CQ Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established