Deanna Caddy v Sureway Employment and Training Pty Ltd

[2025] FWC 1046

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Deanna Caddy
v

Sureway Employment and Training Pty Ltd

(U2025/121)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 APRIL 2025

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

On 5 January 2025, Ms Deanna Caddy made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Ms Caddy’s application raised a concern about whether her application was filed within the 21-day time limit.

Commission staff tried to contact Ms Caddy and her representative on 21 February and 6 March 2025 by email and SMS about this concern. Ms Caddy, nor her representative, have 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 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 Caddy has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Ms Caddy’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Deanna Caddy on 5 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Deanna Caddy lodged an unfair dismissal application with the Fair Work Commission under the Fair Work Act 2009 on 5 January 2025. Her application pertained to her dismissal by Sureway Employment and Training Pty Ltd. A concern was raised regarding whether her application was filed within the required 21-day time limit. Attempts to contact Ms Caddy and her representative on 21 February and 6 March 2025 regarding this issue went unanswered. The Commission considered dismissing the application under s.587(1)(c) of the Fair Work Act, which allows for dismissal for want of prosecution if an applicant is no longer willing to participate in their own case.

The primary legal issue for the court was whether Ms Caddy's failure to respond to the Commission's inquiries indicated that she was no longer willing to participate in her own case, thereby justifying the dismissal of her application. The court referred to the precedent in Viavattene v Health Care Australia, which established that the Commission is not required to persist with an application if the applicant's conduct suggests they are not actively pursuing their case. The Deputy President concluded that Ms Caddy had had ample opportunity to address the concerns regarding her application and had failed to respond. This inaction supported the conclusion that Ms Caddy was no longer willing to participate in her own case.

In light of the above, the Deputy President found that the application could and should be dismissed under s.587 of the Fair Work Act. The court was satisfied that all material matters had been presented to Ms Caddy and that her inaction warranted the dismissal of her application. Consequently, the court dismissed Ms Caddy's application under s.394 of the Fair Work Act 2009.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established