Elijah Strauss-Tamati v Thomas Martino

[2025] FWC 45

[2025] FWC 45

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elijah Strauss-Tamati
v

Thomas Martino

(U2024/12410)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 JANUARY 2025

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.

1. On 17 October 2024, Mr Elijah Strauss-Tamati filed an application by telephone for a remedy for unfair dismissal under s 394 of the Fair Work Act 2009 (the Act).

1. For the reasons that follow, I am satisfied that Mr Strauss-Tamati’s application has no reasonable prospects of success and should be dismissed.

1. On 24 October 2024, correspondence was sent to Mr Strauss-Tamati to confirm the name of the Respondent, because the Respondent did not appear to be a National System Employer.

1. Commission staff have tried to contact Mr Strauss-Tamati on the following dates:

·   24 October 2024 by telephone and email;

·   29 October 2024 by telephone; and

·   7 November 2024 by telephone.

1. Commission staff sought further information from Mr Strauss-Tamati about the name of the respondent.  Mr Strauss-Tamati asked what the correct respondent entity was and was advised it would be his employer.  Mr Strauss-Tamati was requested to provide the correct name of the Respondent by 8 November 2024.

1. To date Mr Strauss-Tamati has not provided any further information that supports his eligibility to make the application.

Section 587

1. The relevant provisions in s 587 of the Act are as follows:

“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.”

1. The words, “Without limiting when the 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).

1. 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]).

Does Mr Strauss-Tamati’s application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mr Strauss-Tamati’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr Strauss-Tamati on his Form F2 application is unclear as to whether he is eligible to make an unfair dismissal application

1. Mr Strauss-Tamati has been on notice since 24 October 2024 of the likely consequences for his application if he does not respond.  No response has been received.

1. In the circumstances, I have decided that it is appropriate to dismiss Mr Strauss-Tamati’s application on the Commission’s own initiative pursuant to s 587(3)(a) of the Act for want of prosecution, it being evident that Mr Strauss-Tamati’s application has no prospects of success.

1. I have separately made an order to this effect (PR783029).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR783028>