James Mueller v Roads & Maritime Service/Transport NSW Summary

[2025] FWC 2715

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

James Mueller
v

Roads & Maritime Service/Transport NSW

(U2025/5626)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

Application for an unfair dismissal remedy – dismissal under s.587 for want of prosecution.

On 6 May 2025, Mr James Mueller filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

Mr Mueller alleged he was employed by Roads & Maritime Service/Transport NSW until he was dismissed on 15 April 2025.

Mr Mueller was represented by Turner Freeman. On 25 June 2025, an email was sent to Mr Mueller and his representative in relation to whether his former employer was a National System Employer. Mr Mueller was required to respond by 3 July 2025 and was advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Mueller telling him that an important email had been sent.

Neither Mr Mueller or his representative have responded.

Section 587 of the Act provides:

“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or
(b)       the application is frivolous or vexatious; or
(c)       the application has no reasonable prospects of success.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

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]).

In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Mueller’s application.

Mr Mueller has been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

For these reasons I have decided to dismiss Mr Mueller’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr James Mueller on 6 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of James Mueller versus Roads & Maritime Services/Transport NSW, the applicant, Mr Mueller, filed an unfair dismissal application under the Fair Work Act 2009 (Cth). He alleged he was dismissed by his employer on 15 April 2025. The matter was heard by Deputy President Easton of the Fair Work Commission. The primary issue before the Court was whether the application should be dismissed under s.587 of the Fair Work Act for want of prosecution, given Mr Mueller’s failure to respond to correspondence from the Commission.

The legal issue the Court had to determine was whether Mr Mueller's lack of response to the Commission's inquiries regarding his application constituted a cessation of his participation in the proceedings, warranting dismissal under s.587. The Court examined the statutory provisions and relevant case law to assess whether the application had been abandoned. Mr Mueller was required to respond to the Commission's inquiry by 3 July 2025, and he was notified that failure to respond could result in his application being dismissed without further notice. Mr Mueller did not respond to the inquiry, and neither he nor his representative responded to the Commission’s email or SMS. The Court found that Mr Mueller’s failure to respond indicated that he may have abandoned his application.

Based on the statutory authority provided by s.587(3)(a) of the Fair Work Act, the Court decided to dismiss Mr Mueller’s application for want of prosecution. The Court concluded that Mr Mueller's conduct demonstrated that he had ceased to participate in the proceedings, and therefore, the application was dismissed. The Court made an order dismissing the application under s.394 of the Fair Work Act 2009 (Cth).

James Mueller v Roads & Maritime Service/Transport NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established