Clayton Elliott v Poletech Pty Ltd

[2025] FWC 2731

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Clayton Elliott
v

Poletech Pty Ltd

(U2025/9505)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

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

On 5 June 2025, Mr Clayton Elliott made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The application filed by Mr Elliott was incomplete in the following ways:

· that he did not provide the completed waiver (or payment of the application fee); and
· Mr Elliott did not specify the date he commenced employment.

Commission staff tried to contact Mr Elliott on 11 June and 23 June 2025 about these concerns. Mr Elliott 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 Elliott 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 Elliott’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Clayton Elliott on 5 June 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Clayton Elliott applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The application was filed by Mr Elliott on 5 June 2025 and it was incomplete in two ways: Mr Elliott did not provide the completed waiver (or payment of the application fee) and he did not specify the date he commenced employment. The Commission attempted to contact Mr Elliott on 11 June and 23 June 2025 to address these issues, but he did not respond. The Commission has the authority under section 587 to dismiss an application on its own initiative if the applicant's conduct or omissions show that they are no longer willing to participate in their own case. The Deputy President, Easton, was satisfied that Mr Elliott had been given the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587.

The legal issue for the Court was whether the application could be dismissed for want of prosecution under section 587 of the Fair Work Act 2009. The Court had to consider whether Mr Elliott's conduct or omissions showed that he was no longer willing to participate in his own case. The Court referred to the case of Viavattene v Health Care Australia [2013] FWCFB 2532 and the principle that the Commission is not required to persevere with the application if the applicant is no longer willing to participate. The Court was satisfied that Mr Elliott had had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587.

In light of the above, the Deputy President dismissed Mr Elliott’s application for unfair dismissal under section 394 of the Fair Work Act 2009. The Court found that the application was incomplete and that Mr Elliott had not responded to the Commission’s correspondence. The Court concluded that the facility under section 587 could and should be engaged to dismiss the application. The Deputy President made the following order: the application under section 394 of the Fair Work Act 2009 made by Mr Clayton Elliott on 5 June 2025 is dismissed.

CaseChat Overview and Summary

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Background to the litigation

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