Garry Krestensen v Retene Pty Ltd Trading as Raine & Horne Commercial Port Macquarie Summary

[2025] FWC 2721

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Garry Krestensen
v

Retene Pty Ltd Trading AS Raine & Horne Commercial Port Macquarie

(U2025/5948)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

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

On 14 May 2025, Mr Garry Krestensen 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 Krestensen application raised a concern about whether the application was filed within the 21 day time limit.

Commission staff tried to contact Mr Krestensen on 17 June and 27 June 2025 about this concern. Mr Krestensen 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 Krestensen 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 Krestensen’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Garry Krestensen on 14 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Garry Krestensen applied for an unfair dismissal remedy against Retene Pty Ltd Trading as Raine & Horne Commercial Port Macquarie. Krestensen filed his application on 14 May 2025, alleging that his dismissal was unfair. However, concerns arose regarding whether the application was lodged within the 21-day statutory time limit. The Commission attempted to contact Krestensen on 17 June and 27 June 2025 to address this issue, but he did not respond. Consequently, the Commission considered dismissing the application under section 587 of the Fair Work Act for want of prosecution.

The central legal issue was whether Krestensen's failure to respond to the Commission's inquiries about the time limit constituted sufficient grounds to dismiss his application. The Commission had to determine if Krestensen's conduct demonstrated a lack of willingness to pursue his application. Previous case law, such as Viavattene v Health Care Australia, established that the Commission is not obligated to proceed with an application if the applicant's conduct indicates they no longer wish to participate in their own case. The Deputy President had to weigh the procedural requirements and the applicant's conduct to decide if the application should be dismissed.

The Deputy President found that Krestensen had ample opportunity to present his case but failed to respond to the Commission's inquiries regarding the time limit for filing the application. Consequently, the Deputy President concluded that Krestensen's conduct showed a lack of willingness to participate in his own case. Under section 587 of the Fair Work Act, the Commission was justified in dismissing the application. The Deputy President thus dismissed Krestensen's application for unfair dismissal.

The final order was that the application for unfair dismissal made by Garry Krestensen on 14 May 2025 was dismissed under section 587 of the Fair Work Act for want of prosecution.

Garry Krestensen v Retene Pty Ltd Trading as Raine & Horne Commercial Port Macquarie

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established