Dominic De Thierry v The Trustee for Ian Gregory O'Connor Family Trust

[2024] FWC 2968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dominic De Thierry
v

The Trustee For Ian Gregory O’Connor Family Trust

(U2024/8360)

DEPUTY PRESIDENT EASTON

SYDNEY, 25 OCTOBER 2024

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 18 July 2024, Mr Dominic De Thierry filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 29 August 2024 however Mr De Thierry did not attend.

On 29 August 2024, correspondence was sent to Mr De Thierry in relation to his non-attendance and was asked to email his request to proceed with a further conciliation within 2 working days.

On 11 September 2024 Mr De Thierry was invited to provide submissions in relation to the correct legal name for the respondent, The Trustee For Ian Gregory O’Connor Family Trust. Mr Thierry did not respond.

To date, Mr De Thierry 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 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)(a), (b) and (c).

Mr De Thierry has been on notice of the likely consequences of his application if he does not respond.

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]).

In the circumstances I have decided to dismiss Mr De Thierry’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 (PR780621).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Dominic De Thierry filed an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The respondent in this case was The Trustee for Ian Gregory O'Connor Family Trust. The Fair Work Commission was tasked with deciding on whether the dismissal was unfair and whether Mr De Thierry's application had reasonable prospects of success. The Commission's jurisdiction to dismiss an application is broad, as per section 587(1) of the Act, which includes scenarios where the application is not pursued by the applicant.

The central legal issue for the Commission was whether Mr De Thierry's failure to respond to correspondence and attend scheduled conciliation conferences warranted the dismissal of his application under section 587(1)(c) of the Act. The Commission considered whether the application had no reasonable prospects of success due to the applicant's lack of participation in the proceedings. The Commission also examined whether the dismissal of the application was appropriate under section 587(3)(a), which allows the Commission to act on its own initiative.

The Deputy President concluded that Mr De Thierry's lack of participation and unresponsiveness to the Commission's attempts to contact him indicated that his application had no reasonable prospects of success. The decision to dismiss the application was made in accordance with section 587(3)(a) of the Act, which empowers the Commission to dismiss an application on its own initiative if the applicant has ceased to pursue or participate in the proceedings. The Deputy President dismissed the application on the grounds of want of prosecution and issued an order to that effect.

This decision underscores the importance of applicant participation in Fair Work Commission proceedings. Failure to engage with the Commission's attempts to contact and proceed with the application can result in the dismissal of the application. The dismissal of Mr De Thierry's application serves as a reminder to applicants of their obligation to actively participate in the proceedings they initiate.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established