Jeremy Roy Peterson v Ross Llewellyn Motors

[2025] FWC 863

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jeremy Roy Peterson
v

Ross Llewellyn Motors

(U2024/13286)

DEPUTY PRESIDENT EASTON

SYDNEY, 27 MARCH 2025

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

On 7 November 2024, Mr Jeremy Roy Peterson made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The Form F3 response raised a concern about whether Mr Peterson had served the Minimum Employment Period under sections 382 and 383 of the Fair Work Act 2009.

Commission staff tried to contact Mr Peterson on 4 February and 18 February 2025 about this concern.

Mr Peterson responded on 6 February 2025 to the Commission’s correspondence, however he did not provide any additional relevant information regarding whether he had served the minimum employment period.

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 Peterson 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 Peterson’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Jeremy Roy Peterson on 7 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr Jeremy Roy Peterson, applied to the Fair Work Commission under section 394 of the Fair Work Act 2009, alleging unfair dismissal. His application was dismissed by Deputy President Easton on 27 March 2025 under section 587 for want of prosecution. The case against Ross Llewellyn Motors involved a dispute over whether Mr Peterson had completed the Minimum Employment Period under sections 382 and 383 of the Fair Work Act 2009. The primary issue the court had to determine was whether Mr Peterson had failed to prosecute his application in a manner that warranted dismissal under section 587 of the Act.

The court examined Mr Peterson's conduct and omissions to ascertain whether he had ceased to pursue his application. It noted that although Mr Peterson responded to the Commission's correspondence, he did not provide any additional relevant information about his employment period. The court concluded that Mr Peterson's conduct demonstrated a lack of willingness to participate in his case. As per the precedent set in Viavattene v Health Care Australia, if an applicant's conduct shows they are no longer willing to pursue their case, the Commission can dismiss the application under section 587. The court was satisfied that Mr Peterson had ample opportunity to present his case but failed to provide necessary information, justifying dismissal of his application.

In conclusion, the court found that Mr Peterson's failure to provide information regarding the Minimum Employment Period justified the dismissal of his application under section 587. The court dismissed the application for unfair dismissal on the grounds that Mr Peterson did not actively participate in the proceedings, despite having the opportunity to do so. The formal order made by the court was that the application made by Mr Jeremy Roy Peterson under section 394 of the Fair Work Act 2009, dated 7 November 2024, was dismissed.

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