James Thoranine v Maneto Pty. Limited Summary

[2025] FWC 459

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

James Thoranine
v

Maneto Pty. Limited

(U2024/11984)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 FEBRUARY 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) for want of prosecution.

On 7 October 2024, Mr James Thoranine filed an unfair dismissal application in the Fair Work Commission. In his application Mr Thoranine said that “Maneto Pty. Limited” was his former employer. A Form F3 response was received and that response indicated that the legal name of the former employer is Able Kitchens Pty Ltd.

On 27 November 2024 Commissions staff sent correspondence to Mr Thoranine regarding the legal name of his former employer.

Mr Thoranine was asked to provide a response by 4 December 2024. Mr Thoranine did not respond to this correspondence. To date, Mr Thoranine has not responded to any of the Commission’s attempts to contact him.

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 Thoranine’s application. The Commission’s query about the legal name of the respondent was administrative and should have been resolved very quickly to allow Mr Thoranine’s claim to progress.

Mr Thoranine has been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry.

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

1.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr James Thoranine on 7 October 2024 is dismissed

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

James Thoranine filed an application for unfair dismissal against his former employer, initially named as Maneto Pty. Limited, which was later identified as Able Kitchens Pty Ltd. The application was lodged on 7 October 2024, alleging that Mr Thoranine had been unfairly dismissed. The Fair Work Commission raised an administrative query about the legal name of the respondent, to which Mr Thoranine did not respond despite multiple attempts to contact him. The Commission gave Mr Thoranine an opportunity to respond to the query by 4 December 2024, but he failed to do so, leading to the current dismissal application.

The legal issues before the court included whether the application could be dismissed under section 587(1)(c) of the Fair Work Act 2009 for want of prosecution, and if procedural fairness was afforded to Mr Thoranine in the process. The court examined the Act to determine if Mr Thoranine's failure to respond to the Commission's inquiry justified dismissal, considering that the query was administrative and essential for the claim to progress. The court also assessed whether Mr Thoranine had been adequately notified of the potential consequences of his inaction.

The Deputy President concluded that the application could indeed be dismissed for want of prosecution. The administrative nature of the query regarding the respondent's legal name meant that Mr Thoranine's failure to respond was significant. He had been given ample notice of the consequences of not responding to the Commission's inquiries, and his continued silence indicated a lack of willingness to participate in the proceedings. The Deputy President exercised the power to dismiss the application on their own initiative, as permitted by section 587(3)(a) of the Act.

The final order was that Mr Thoranine's application under section 394 of the Fair Work Act 2009, made on 7 October 2024, was dismissed. The dismissal was based on the applicant's failure to respond to the Commission's administrative query and his apparent lack of interest in pursuing the application, leading to the conclusion that the application had no reasonable prospects of success.

James Thoranine v Maneto Pty. Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established