| [2025] FWC 2702 |
| FAIR WORK COMMISSION |
| DECISION AND ORDER |
Fair Work Act 2009
s.394—Unfair dismissal
Eli Melksham
v
The Trustee For The Harris Family Trust
(U2025/4442)
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 SEPTEMBER 2025 |
Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative for want of prosecution.
On 10 April 2025, Mr Eli Melksham made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).
Mr Melksham did not attend a telephone conciliation conference scheduled for 9 May 2025.
Commission staff tried to contact Mr Melksham on 9 May, 15 May and 25 June 2025 about whether he wants to continue his unfair dismissal claim. Mr Melksham has not responded to the Commission’s inquiries.
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 Mr Melksham 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 Mr Melksham’s application. I make the following order:
A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Eli Melksham on 10 April 2025 is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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- AGLC
- Eli Melksham v The Trustee for the Harris Family Trust [2025] FWC 2702
- Case
- [2025] FWC 2702
- Decision Date
CaseChat Overview and Summary
The legal issue the Commission had to decide was whether the application should be dismissed for want of prosecution. Section 587 of the Fair Work Act allows the Commission to dismiss an application for want of prosecution on the Commission’s own initiative if it appears that the applicant is no longer willing to participate in their own case. The Commission considered whether Mr Melksham had had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application. The Commission also considered the decision in Viavattene v Health Care Australia [2013] FWCFB 2532 which held that the Commission is not required to persevere with an application if the applicant’s conduct or omissions show that they are no longer willing to participate in their own case.
The Commission was satisfied that Mr Melksham had had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application. The Commission was also satisfied that the facility under section 587 could and should be engaged to dismiss Mr Melksham’s application. The Commission found that Mr Melksham’s conduct and omissions showed that he was no longer willing to participate in his own case. Accordingly, the Commission dismissed Mr Melksham’s application under section 394 of the Fair Work Act 2009 (Cth) made on 10 April 2025.
The Fair Work Commission ordered that the application under section 394 of the Fair Work Act 2009 (Cth) made by Mr Eli Melksham on 10 April 2025 is dismissed. The Commission also ordered that Mr Melksham pay the costs of the application.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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