Dane William Tolhurst v South32 Summary

[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.

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).

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

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.

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

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.”

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).

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]).

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

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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Dane William Tolhurst as the applicant and South32 as the respondent. Tolhurst filed an application for unfair dismissal under section 394 of the Fair Work Act 2009. The dispute centres on whether the Fair Work Commission (FWC) should dismiss Tolhurst's application for unfair dismissal as it has not been pursued with due diligence. The matter was heard in the FWC in Perth.

The primary legal issue before the court was whether Tolhurst's application for unfair dismissal could be dismissed under section 587(1)(c) of the Act, which allows for the dismissal of an application if it has no reasonable prospects of success. This provision is particularly relevant where the applicant has ceased to prosecute or participate in the proceedings they initiated. The court also considered whether the application was frivolous or vexatious, which could be grounds for dismissal under section 587(1)(b). Additionally, the court examined whether Tolhurst's failure to respond to the Commission's communications and complete his Form F2 application could justify the dismissal of his application.

Deputy President Beaumont concluded that Tolhurst's application had not been pursued diligently, as he had not responded to multiple attempts by the FWC to contact him regarding his incomplete Form F2 application. The court found that Tolhurst had been on notice since 18 November 2024 of the potential consequences of his inaction. Given the lack of prosecution by Tolhurst, the court exercised its discretion under section 587(3)(a) of the Act to dismiss the application on its own initiative. The court noted that the FWC is not obligated to continue with an application where it is clear that the applicant has abandoned it.

The court issued an order dismissing Tolhurst's application for unfair dismissal for want of prosecution. This order was made in accordance with the provisions of section 587 of the Fair Work Act 2009.

Dane William Tolhurst v South32

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established