Gavin Morris v Yipirinya School Council Summary

[2025] FWC 1065

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Gavin Morris

Yipirinya School Council

(U2024/14426)

DEPUTY PRESIDENT BEAUMONT

PERTH, 15 APRIL 2025

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

On 2 December 2024, Mr Gavin Morris (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

On 28 January 2025, Commission staff emailed parties to notify them that the matter was listed for telephone conciliation on 1:15PM (Queensland Time) on 17 February 2025.

On 14 February 2025, Commission staff sent SMS reminders regarding the conciliation.

Mr Morris did not attend the telephone conciliation conference on 17 February 2025.

Commission staff tried to contact the Applicant about whether he wished to continue his unfair dismissal application on the following dates:

· 17 February 2025 by email and telephone;
· 27 February 2025 by email and express post; and
· 19 March 2025 by email and text message.

The email from Deputy President Easton’s Chambers dated 19 March 2025 put the Applicant on notice that the Commission was considering dismissing his application and required the Applicant to respond by 4:00PM on 28 March 2025.

The Applicant has not responded to the Commission’s correspondence.

Section 587 of the Act 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 the Applicant 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 the application. I make the following order:

1. The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Gavin Morris on 2 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr Gavin Morris, filed an unfair dismissal application under the Fair Work Act 2009 against the Yipirinya School Council. The case was dismissed by the Fair Work Commission under section 587(1)(c) for want of prosecution. Mr Morris did not attend a scheduled telephone conciliation conference and failed to respond to multiple communications from the Commission. The Commission staff had made several attempts to contact Mr Morris and notify him of the dismissal of his application if he did not respond.

The legal issue before the court was whether the Fair Work Commission could dismiss Mr Morris's unfair dismissal application under section 587 of the Fair Work Act 2009 due to his failure to prosecute the application. The court considered whether Mr Morris had shown a lack of willingness to participate in his case, which would warrant dismissal under section 587.

The Deputy President found that Mr Morris had not responded to the Commission's correspondence and had not participated in the conciliation conference. The court held that the Commission was not required to persevere with the application if the applicant's conduct or omissions showed that they were no longer willing to participate in their own case. The Deputy President was satisfied that Mr Morris had had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application. Therefore, the court dismissed the application under section 587 of the Fair Work Act 2009.

The Fair Work Commission dismissed the application for unfair dismissal made by Mr Gavin Morris under section 394 of the Fair Work Act 2009. The dismissal was made under section 587(1)(c) of the Act for want of prosecution. The court found that Mr Morris had failed to participate in his case and had not responded to multiple communications from the Commission. The court held that the Commission was not required to persevere with the application if the applicant's conduct or omissions showed that they were no longer willing to participate in their own case.

Gavin Morris v Yipirinya School Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established