Johnathan Black v Arden Architectural Pty Ltd Summary

[2025] FWC 543

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Johnathan Black
v

Arden Architectural Pty Ltd

(U2024/10604)

DEPUTY PRESIDENT EASTON

SYDNEY, 21 FEBRUARY 2025

Application for an unfair dismissal remedy – lack of prosecution – dismissal under s.587(3)(a) at the Commission’s initiative.

On 8 September 2024, Mr Johnathan Black filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 8 October 2024, Mr Black did not attend at the listed time, however he did eventually return the conciliator’s call and told the conciliator that he was unable to participate because he was at work and had mixed up his days.

A second conciliation conference was scheduled for 6 November 2024, Mr Black did not attend.

Since then Mr Black has not responded to any of the Commission’s attempts to contact him and has taken no steps to prosecute his claim.

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]).

In these circumstances I am satisfied that the facility under s.587(3)(a) can and should be engaged to dismiss Mr Black’s application.

Mr Black has been on notice that his application could be dismissed under s.587, and has had the opportunity to put a case for consideration on all matters material to the making of the decision to dismiss the application.

For these reasons I have decided to dismiss Mr Black’s application for want of prosecution, and make the following order.

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Johnathan Black on 8 September 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Johnathan Black filed an unfair dismissal application against Arden Architectural Pty Ltd on 8 September 2024, seeking a remedy under s.394 of the Fair Work Act 2009 (Cth). Mr Black's application arose from his dismissal by Arden Architectural. However, Mr Black failed to attend two scheduled conciliation conferences, citing work commitments and a scheduling error as his reasons for the initial missed conference. Despite subsequent attempts by the Fair Work Commission to contact Mr Black, he did not attend the second conference or respond to further communication from the Commission, nor did he take any steps to prosecute his claim.

The legal issues before the Commission centred on the applicant's lack of participation and prosecution of his claim, which raised questions about whether the Commission should dismiss the application under s.587(3)(a) for want of prosecution. The Commission considered whether Mr Black's conduct and omissions demonstrated that he was no longer willing to participate in his own case, and whether the application could be dismissed without further proceedings.

The Commission found that Mr Black's failure to attend the conciliation conferences and his subsequent lack of response to the Commission's attempts to contact him indicated that he was no longer willing to participate in his own case. The Commission noted that Mr Black had been on notice that his application could be dismissed under s.587, and had had the opportunity to present his case on all matters material to the decision to dismiss the application. Given these circumstances, the Commission decided to dismiss Mr Black's application for want of prosecution.

The Fair Work Commission dismissed Mr Black's application for unfair dismissal on 21 February 2025, under s.587(3)(a) of the Fair Work Act 2009. The Commission found that Mr Black's failure to attend the conciliation conferences and his lack of response to the Commission's attempts to contact him demonstrated that he was no longer willing to participate in his own case. The Commission concluded that it was not required to persevere with the application, and dismissed it on the Commission's own initiative for want of prosecution.

Johnathan Black v Arden Architectural Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established