Fatafehi Fredrick Alipate v John Holland Pty Ltd

[2025] FWC 1710

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Fatafehi Fredrick Alipate
v

John Holland Pty Ltd

(U2025/4416)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JUNE 2025

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

On 9 April 2025, Mr Fatafehi Fredrick Alipate made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Alipate’s application raised a concern about whether Mr Alipate’s application was filed within the 21 day time limit.

Commission staff tried to contact Mr Alipate on 29 April and 15 May 2025 about this concern. Mr Alipate has not 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 Mr Alipate 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 Alipate’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Fatafehi Fredrick Alipate on 9 April 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr. Fatafehi Fredrick Alipate applied to the Fair Work Commission for an unfair dismissal remedy against his former employer, John Holland Pty Ltd. The application was made under section 394 of the Fair Work Act 2009, concerning a dismissal under section 587(1)(c) at the Commission’s initiative due to the applicant's failure to prosecute the case. The primary issue before the Deputy President was whether the application could be dismissed for want of prosecution. This decision was influenced by the applicant's failure to respond to the Commission's correspondence and attempts to contact him regarding the timeliness of the application.

The court examined whether Mr. Alipate's conduct or omissions demonstrated a lack of willingness to participate in the proceedings. Given that Mr. Alipate had not responded to the Commission’s correspondence and had missed the 21-day time limit to file his application, the Deputy President found that Mr. Alipate's conduct indicated he was no longer willing to pursue his case. The court referenced the precedent set in Viavattene v Health Care Australia, where the Commission dismissed a case for want of prosecution when the applicant failed to participate in the proceedings. The Deputy President concluded that Mr. Alipate had been given ample opportunity to present his case and that dismissing the application was appropriate under section 587 of the Fair Work Act.

In light of the above, the Deputy President dismissed the unfair dismissal application. The court ordered that Mr. Alipate's application under section 394 of the Fair Work Act 2009, filed on 9 April 2025, be dismissed. This decision underscores the importance of timely and active participation in legal proceedings, particularly in cases before the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established