Danielle Ryan v Australian Marine Conservation Society Summary

[2025] FWC 1989

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Danielle Ryan
v

Australian Marine Conservation Society

(U2025/726)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 JULY 2025

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

On 21 January 2025, Ms Danielle Ryan made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

On 7 March 2025 the Commission was notified that the parties had reached an in-principle agreement to resolve her application. A conciliation conference scheduled for that day was vacated.

Since then Ms Ryan has not discontinued her application or taken any steps to prosecute her case.

Commission staff asked for updates on 21 March 2025, 8 April 2025 and 27 May 2025. No response has been received.

The matter was listed for a Directions Hearing at 10:00am on 6 June 2025 however Ms Ryan did not attend. My chambers made several attempts to contact Ms Ryan but was not successful.

It appears that Ms Ryan is no longer pursuing her unfair dismissal claim.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative 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 Ms Ryan has been on notice that her application could be dismissed under s.587, and has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application.

In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Ryan’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Danielle Ryan on 21 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Ms Danielle Ryan, brought an application for unfair dismissal against her former employer, the Australian Marine Conservation Society. The matter was listed for a Directions Hearing before the Fair Work Commission, where Ms Ryan did not attend. The Commission had previously been notified that Ms Ryan had reached an in-principle agreement with the respondent to resolve her application, and as a result, a conciliation conference was vacated. Despite several attempts to contact Ms Ryan and to obtain updates on her application, no response was received. The Commission was satisfied that Ms Ryan had been on notice that her application could be dismissed for want of prosecution and had had the opportunity to present a case on all material matters. It was determined that Ms Ryan was no longer willing to pursue her application.

The legal issue before the court was whether Ms Ryan’s conduct or omissions showed that she was no longer willing to participate in her own case, which would permit the dismissal of her application under s.587 of the Fair Work Act 2009. The court referred to Viavattene v Health Care Australia, where it was established that 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. In this case, the court found that Ms Ryan had failed to attend the Directions Hearing, had not taken any steps to prosecute her case, and had not responded to attempts to contact her or obtain updates on her application. Given the circumstances, the court was satisfied that Ms Ryan had been on notice that her application could be dismissed for want of prosecution and had had the opportunity to present a case on all material matters.

The court found that the facility under s.587 could and should be engaged to dismiss Ms Ryan’s application. The court was satisfied that Ms Ryan had been on notice that her application could be dismissed for want of prosecution and had had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application. The court dismissed Ms Ryan’s application and made the following order: A. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Danielle Ryan on 21 January 2025 is dismissed.

Danielle Ryan v Australian Marine Conservation Society

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established