Henry Arthur Rogers v D & R Lavis Summary

[2025] FWC 1689

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Henry Arthur Rogers
v

D & R Lavis

(U2025/413)

DEPUTY PRESIDENT EASTON

SYDNEY, 17 JUNE 2025

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

On 13 January 2025 Mr Henry Arthur Rogers made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Rogers did not attend a telephone conciliation conference scheduled for 27 February and 1 April 2025.

Commission staff tried to contact Mr Rogers on 1 April, 17 April and 30 April 2025 about this concern. Mr Rogers 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 Rogers 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 Roger’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Rogers on 13 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Henry Arthur Rogers sought an unfair dismissal remedy against D & R Lavis under section 394 of the Fair Work Act 2009, alleging unfair dismissal. However, the proceedings faced complications as Rogers did not participate in the scheduled telephone conciliation conferences and failed to respond to multiple communications from the Commission regarding the matter. The Fair Work Commission was required to determine whether the application could be dismissed under section 587(1)(c) for want of prosecution.

The legal issue before the Deputy President was whether Rogers' conduct justified dismissing the application on the Commission's own initiative due to lack of prosecution. The precedent set in Viavattene v Health Care Australia [2013] FWCFB 2532 was considered, which stated that if an applicant is no longer willing to participate in their own case, the Commission is not obligated to continue with the application. The Commission assessed whether Rogers had the opportunity to present his case and whether his failure to engage warranted dismissal.

After reviewing the circumstances, the Deputy President concluded that Rogers had ample opportunity to present his case but failed to engage with the proceedings. Given Rogers' lack of participation and response to multiple communications, the Deputy President found that Rogers was no longer willing to pursue his application. Therefore, the application was dismissed under section 587(1)(c) of the Fair Work Act.

The Fair Work Commission ordered that the application made by Rogers on 13 January 2025 be dismissed. The Deputy President determined that Rogers' failure to participate and respond to the Commission's communications justified the dismissal of the application for want of prosecution.

Henry Arthur Rogers v D & R Lavis

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established