Danny Ginivan v Lamigraf (Australia) Pty. Ltd

[2025] FWC 251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danny Ginivan
v

Lamigraf (Australia) Pty. Ltd.

(U2024/13716)

COMMISSIONER MIRABELLA

MELBOURNE, 29 JANUARY 2025

Application for an unfair dismissal remedy

On 18 November 2024, Mr Danny Ginivan (the Applicant) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act) in the Fair Work Commission (Commission).

The Applicant commenced employment with Lamigraf (Australia) Pty. Ltd. (the Respondent) on 13 January 2022 and was dismissed on 29 October 2024.

Before this matter was allocated to me on 10 January 2025 for case management, the Applicant had failed to attend a staff member conciliation conference listed on 7 January 2025. No explanation was provided by the Applicant for his failure to attend this conciliation conference.

I listed the matter for mention/conference via Microsoft Teams on 23 January 2025. The Applicant did not attend. This is despite three attempts to contact him by telephone on 23 January 2025 and an email sent to him on 23 January 2025 by my chambers requesting that he urgently join the mention/conference and offering assistance to do so.

Subsequent to his non-attendance, I then caused an email to be sent to the Applicant later that day advising that a failure to attend a listing of the Commission may impact on the continuation of the matter, drawing his attention to sections 399A and 587 of the Act and requesting that he provide an explanation for his non-attendance by 12:00pm on 28 January 2025.

The Applicant did not contact chambers by the deadline. Chambers unsuccessfully called the Applicant at about 2:30pm on 29 January 2025. At the time of writing, the Applicant has not engaged with the Commission since submitting his application.

Consideration

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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

The FWC may dismiss an application:
(a) on its own initiative; or

(b) on application.”

The Applicant has not taken any reasonable steps to progress his application since it was filed on 18 November 2024. In the circumstances, the appropriate course is to dismiss the application for want of prosecution under s.587 of the Act. The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application for an unfair dismissal remedy brought by Danny Ginivan against Lamigraf (Australia) Pty. Ltd. The application was filed with the Fair Work Commission under section 394 of the Fair Work Act 2009. Ginivan was employed by the Respondent from 13 January 2022 until his dismissal on 29 October 2024. The Commission was tasked with determining whether the dismissal was unfair and, if so, whether to grant a remedy. The primary legal issue the Commission had to address was whether the application should be dismissed for want of prosecution under section 587 of the Fair Work Act 2009.

The Commission examined whether Ginivan had taken reasonable steps to progress his application since its filing on 18 November 2024. It was noted that Ginivan failed to attend a conciliation conference scheduled for 7 January 2025, and subsequently, he did not attend a mention/conference via Microsoft Teams on 23 January 2025, despite multiple attempts by the Commission to contact him. Further, Ginivan did not respond to a deadline set by the Commission to provide an explanation for his non-attendance or to engage with the Commission. Given these circumstances, the Commission determined that Ginivan had not taken any reasonable steps to progress his application. Consequently, the application was dismissed under section 587 of the Act, which allows the Commission to dismiss an application if it has no reasonable prospects of success.

The Commission's decision to dismiss the application was based on the lack of engagement by Ginivan with the proceedings. The Commission highlighted that Ginivan had not responded to communications, missed scheduled proceedings, and failed to provide any explanation for his non-attendance. The dismissal was not made on the grounds of the application being frivolous or vexatious, but rather due to the lack of prosecution. The application was dismissed with no further orders made, as the dismissal itself was the final outcome.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established