David Garland v Parklo Pty Ltd T/A Francis Phillip Motor Inn

[2025] FWC 542

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

David Garland
v

Parklo Pty Ltd T/A Francis Phillip Motor Inn

(U2024/6782)

DEPUTY PRESIDENT EASTON

SYDNEY, 21 FEBRUARY 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 13 June 2024, Mr David Garland made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

On 2 August 2024 Commission staff were advised that the parties had reached an in-principle agreement to resolve Mr Garland’s application.

Since then Mr Garland has not discontinued his application or taken any steps to prosecute his case.

Commission staff sent correspondence and messages to Mr Garland on 22 August 2024, 3 September 2024 and 21 January 2025 about the unfair dismissal application. Mr Garland has not responded to the Commission’s correspondence.

Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages of the proceedings. 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 Mr Garland has been on notice that his application could be dismissed under s.587, and that they have had the opportunity to put a case for consideration on all matters material to the making of 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 Mr Garland’s application.

I have therefore decided to make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr David Garland on 13 June 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

David Garland lodged an unfair dismissal application with the Fair Work Commission against Parklo Pty Ltd T/A Francis Phillip Motor Inn, citing that his dismissal was unfair under section 394 of the Fair Work Act 2009. Despite reaching an in-principle agreement to resolve the matter, Mr Garland did not discontinue his application nor did he take any steps to prosecute it. The Commission attempted to contact Mr Garland multiple times, but he did not respond to any correspondence.

The legal issues that the Fair Work Commission had to decide were whether Mr Garland’s failure to prosecute his application could warrant a dismissal under section 587 of the Fair Work Act 2009, and whether Mr Garland had been adequately informed and given the opportunity to present his case. The Commission found that Mr Garland’s lack of response to correspondence and his failure to prosecute the application indicated a lack of willingness to participate in the proceedings. This finding aligned with the principles established in Viavattene v Health Care Australia, which allows for the dismissal of an application if the applicant is not willing to participate.

Given these findings, the Deputy President Easton decided that the application could be dismissed under section 587 of the Fair Work Act 2009. The decision was made considering that Mr Garland had been adequately notified of the potential dismissal and had sufficient opportunity to present his case. Consequently, the application was dismissed, and the Commission issued an order stating that the unfair dismissal application made by Mr David Garland on 13 June 2024 is dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established