Curtis Badger v Valiant Finance Pty. Ltd

[2025] FWC 306

[2025] FWC 306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Curtis Badger
v

Valiant Finance Pty. Ltd.

(U2024/13430)

COMMISSIONER P RYAN SYDNEY, 4 FEBRUARY 2025

Application for an unfair dismissal remedy – application dismissed for want of prosecution

1. On 11 November 2024, Mr Curtis Badger (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application).

1. By the Application, the Applicant alleges he was unfairly dismissed from his employment with Valiant Finance Pty Ltd (Respondent).

1. On 9 December 2024, the matter was allocated to my Chambers for determination.

1. On 11 December 2024, I issued Directions to the parties. Direction [2] of the Directions reads:

“[2]     The Applicant (Mr Curtis Badger) must file with the Fair Work Commission, and serve on the Respondent, by no later than 4.00pm on 24 December 2024:

a)All witness statements upon which they intend to rely in relation to the merits of their application; and

b)Any other documentary material upon which they intend to rely in relation to the merits of their application; and

c)An outline of submissions not exceeding 10 A4 pages in length in relation to their application for unfair dismissal remedy.”

1. The Applicant did not comply with Direction [2].

1. On 7 January 2025, the Applicant was directed to provide an explanation for his failure to comply with the Directions by 4:00pm on 8 January 2025. No response to that correspondence was received from the Applicant or the Applicant’s representative.

1. On 9 January 2025, I became aware that the correspondence sent on 7 January 2025 was only sent to the Applicant’s Representative and the Respondent. I then caused the following email to be sent to the parties:

“Dear parties,

I refer to the above matter and the correspondence below.

Although there has been no response received by the Applicant or from the applicant’s lawyers on behalf of the Applicant, it is noted that the correspondence sent by Chambers on 7 January 2025 did not go to the Applicant, only to the Applicant’s representative.

Accordingly, Commissioner Ryan will provide the Applicant a further opportunity to explain his failure to comply with the directions of the Commission. The Applicant is directed to provide that explanation by no later than 4:00pm on tomorrow, Friday 10 January 2025.

In the absence of any response, this matter may be dismissed without further notice to the parties pursuant to s.587 of the Fair Work Act 2009.

Best wishes

[Associate]”

1. At the request of the Applicant’s Representative, the Applicant was subsequently granted an extension of time to provide an explanation for its failure to comply with Directions by no later than 4:00pm on 15 January 2025.

1. On 15 January 2025, the Applicant’s Representative advised the Commission that the matter had resolved in principle. In response to that correspondence, the Respondent advised the Commission that it had not received any correspondence from the Applicant and requested that the matter be dismissed.

1. I provided the parties with a further opportunity to confer and advise my Chambers as to the status of the matter.

1. On 22 January 2025, the Respondent advised the Commission that it had not received any correspondence from the Applicant and requested that the matter be dismissed.

1. On 29 January 2025, the Applicant’s Representative advised chambers it had not received any further instructions from the Applicant.  

Legislative Provisions

1. Section 587 of the FW Act provides as follows:

“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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

Consideration

1. The Applicant has taken no steps to prosecute the Application. While the Applicant may have been attempting to resolve the matter, that does not absolve the Applicant from complying with the Directions issued by the Commission, or from providing the Commission with an update on the status of the matter.

1. Accordingly, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

Disposition

1. The Application is dismissed. An Order to that effect will issue with this decision.

COMMISSIONER

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