John Dimitropoulos v Adapt Ventures Pty Ltd Summary

[2024] FWC 2970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

John Dimitropoulos
v

ADAPT Ventures Pty Ltd

(U2024/10861)

DEPUTY PRESIDENT EASTON

SYDNEY, 25 OCTOBER 2024

Application for an unfair dismissal remedy – out of time – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success

Mr John Dimitropoulos was employed by Adapt Ventures Pty Ltd until he was dismissed on 22 August 2024. On 13 September 2024, Mr Dimitropoulos filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

Mr Dimitropoulos’ application appears to have been filed outside of the 21 day statutory timeframe by 1 day.

On 24 September 2024, an email and SMS was sent to Mr Dimitropoulos in relation to the application being lodged out of time and he was required to respond by 30 September 2024. Mr Dimitropoulos did not respond to this email.

A further email was sent to Mr Dimitropoulos on 9 October 2024 and he was required to respond by 16 October 2024. Mr Dimitropoulos was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Dimitropoulos telling him that an important email had been sent.

To date, Mr Dimitropoulos 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 Dimitropoulos’ application.

Mr Dimitropoulos has also 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 Dimitropoulos’ application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR780625).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an unfair dismissal claim brought by John Dimitropoulos against Adapt Ventures Pty Ltd. Mr Dimitropoulos was dismissed from his employment on 22 August 2024, and he filed an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 on 13 September 2024. This application was one day outside the 21-day statutory timeframe. Following this, the Commission attempted to contact Mr Dimitropoulos to address the timing issue and inform him of the potential consequences if he did not respond. Despite multiple communications, Mr Dimitropoulos did not respond to the Commission’s inquiries.

The legal issues before the Commission included whether the application was out of time and whether Mr Dimitropoulos had abandoned his application. The primary legal question was whether the application had no reasonable prospects of success, under section 587(1)(c) of the Fair Work Act. This section allows the Commission to dismiss an application if it appears that the application has no reasonable prospects of success, or if the applicant has ceased to pursue the proceedings. Additionally, the Commission had to consider whether Mr Dimitropoulos’ conduct indicated that he had abandoned his application.

In deciding to dismiss the application, the Deputy President considered Mr Dimitropoulos' failure to respond to multiple communications from the Commission. It was noted that Mr Dimitropoulos had been on notice of the potential consequences of not responding and that his inaction could be interpreted as abandonment of his application. The Deputy President concluded that the application had no reasonable prospects of success and that the Commission was not required to persevere with the application if the applicant had ceased to pursue it. The Deputy President cited the case of Viavattene v Health Care Australia as authority for the proposition that the Commission could dismiss an application if the applicant’s conduct indicated they were no longer willing to participate in their own case.

The Deputy President dismissed Mr Dimitropoulos’ application for unfair dismissal on the basis that it had no reasonable prospects of success and that Mr Dimitropoulos had effectively abandoned his application by failing to respond to the Commission’s communications. The decision was made under section 587(3)(a) of the Fair Work Act, which allows the Commission to dismiss an application on its own initiative. An order was separately made to this effect (PR780625).

John Dimitropoulos v Adapt Ventures Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established