Dane William Tolhurst v South32

[2025] FWC 17

[2025] FWC 17

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dane William Tolhurst
v

South32

(U2024/11421)

DEPUTY PRESIDENT BEAUMONT PERTH, 2 JANUARY 2025

Application for an unfair dismissal remedy – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 27 September 2024, Mr Dane Tolhurst filed an application by telephone for a remedy for unfair dismissal under s 394 of the Fair Work Act 2009 (the Act).

1. On 27 September 2024, correspondence was sent to Mr Tolhurst to complete his Form F2 application by 11 October 2024.

1. On 11 October 2024, the Commission phoned Mr Tolhurst concerning his incomplete Form F2 application, leaving a voicemail message directing Mr Tolhurst to return the Commission’s call.

1. To date, Mr Tolhurst has not responded to any of the Commission’s attempts to contact him.

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. The words, “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s 587(1).

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances, the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. Mr Tolhurst has been on notice since 18 November 2024 of the likely consequences for his application if he does not respond.

1. In the circumstances, I have decided to dismiss Mr Tolhurst’s application on my own initiative for want of prosecution, utilising the facility provided by s 587(3)(a) of the Act.

1. I have separately made an order to this effect (PR782961).

DEPUTY PRESIDENT

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