Calvin Lao v The Trustee for Zhilong Trust

[2025] FWC 932

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Calvin Lao
v

The Trustee For Zhilong Trust

(U2025/204)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 APRIL 2025

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

On 6 January 2025, Mr Calvin Lao made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Lao did not attend his telephone conciliation that was scheduled for 12 February 2025.

Commission staff tried to contact Mr Lao on 12, 14, 18 and 24 February 2025 by telephone, email and SMS about whether he wants to continue his unfair dismissal claim. Mr Lao 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 Lao 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 Lao’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Calvin Lao on 6 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Calvin Lao brought an unfair dismissal application to the Fair Work Commission under section 394 of the Fair Work Act 2009. Lao alleged he was dismissed by The Trustee for Zhilong Trust contrary to the provisions of the Act. Lao did not attend the scheduled conciliation meeting, and despite multiple attempts by Commission staff to contact him, Lao did not respond to further correspondence regarding his application. As a result, Lao's application was not prosecuted.

The central legal issue before the Deputy President was whether Lao's failure to attend conciliation and to respond to further contact constituted sufficient grounds to dismiss the application under section 587 of the Act. The Deputy President considered whether Lao's conduct or omissions demonstrated that he was no longer willing to pursue his application. The case of Viavattene v Health Care Australia [2013] FWCFB 2532 was cited as relevant authority, where it was held that the Commission is not required to persevere with an application if the applicant's conduct or omissions show a lack of willingness to participate.

The Deputy President found that Lao had not responded to the Commission's attempts to contact him, and that he had not attended the scheduled conciliation meeting. The Deputy President concluded that Lao had had sufficient opportunity to present his case but had failed to do so. As such, the Deputy President was satisfied that Lao was no longer willing to participate in his application, and that it was appropriate to dismiss the application under section 587.

The Deputy President dismissed Calvin Lao's unfair dismissal application under section 394 of the Fair Work Act 2009. The dismissal was made on the basis that Lao had not participated in his application, having failed to attend the scheduled conciliation meeting and to respond to further contact from the Commission.

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Background to the litigation

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Legal Principle Established