Ethan Skelton v Ina Operations Trust No.1 Summary

[2025] FWC 3017

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Ethan Skelton
v

INA Operations Trust No.1

(U2025/8926)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2025

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

On 23 May 2025, Mr Ethan Skelton made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The information provided in Mr Skelton’s application raised a concern about whether the application was filed within the 21 day time limit.

Commission staff tried to contact Mr Skelton on 24 June and 5 August 2025 about this concern. Mr Skelton 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 Skelton 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 Skelton’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Ethan Skelton on 23 May 2025 is dismissed.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission dealt with an application for an unfair dismissal remedy brought by Ethan Skelton against INA Operations Trust No.1. Skelton had filed an application under s.394 of the Fair Work Act 2009, raising concerns about the timeliness of the application, as it was filed outside the statutory 21-day period. The Commission attempted to contact Skelton to address these concerns on two occasions, on 24 June and 5 August 2025, but received no response. Skelton's lack of engagement with the Commission's inquiries led to the application being dismissed under s.587 of the Fair Work Act, which allows the Commission to dismiss an application for want of prosecution if the applicant's conduct or omissions show a lack of willingness to participate in the proceedings.

The primary legal issue before the Deputy President was whether Skelton's failure to respond to the Commission's inquiries about the application's timeliness warranted dismissal of the application under s.587. The Deputy President concluded that Skelton had had ample opportunity to present his case and that his failure to respond indicated he was no longer willing to participate in the proceedings. The Deputy President referred to Viavattene v Health Care Australia, where it was held that the Commission is not required to persevere with an application if the applicant's conduct suggests they are no longer engaged. Given Skelton's unresponsiveness, the Deputy President was satisfied that the application could be dismissed under s.587.

Consequently, the Deputy President dismissed Skelton's application for an unfair dismissal remedy. The Deputy President made an order dismissing the application under s.394 of the Fair Work Act 2009, reflecting the conclusion that Skelton's conduct demonstrated a lack of willingness to continue with the proceedings. This decision underscores the importance of applicant engagement with the Commission’s inquiries and the consequences of failing to respond appropriately.

Ethan Skelton v Ina Operations Trust No.1

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established