Joshua Manning v The Trustee for Ezytrail Newcastle Unit Trust

[2025] FWC 1129

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Joshua Manning
v

The Trustee For Ezytrail Newcastle Unit Trust

(U2025/2493)

DEPUTY PRESIDENT BEAUMONT

PERTH, 24 APRIL 2025

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

On 4 March 2025, Mr Joshua Manning (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act2009 (Cth) (the Act).

The Applicant’s Form F2 application indicated that his dismissal took effect on 6 February 2025. Under s 394(2) of the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission may allow under s 394(3). The Applicant’s application, lodged on 4 March 2025, was thus five days late. Under section 394(3), a further period to lodge an application may be allowed if the Commission is satisfied that exceptional circumstances exist.

The Chambers of Deputy President Easton emailed the Applicant on 26 March 2025 in relation to the Applicant’s application being five days late. The Applicant was directed to inform Chambers of the basis upon which he said there were exceptional circumstances by close of business on 4 April 2025. Chambers also sent an SMS on 26 March 2025 alerting the Applicant to the correspondence. Chambers received no response.

A final notice was emailed to the Applicant on 11 April 2025 noting the lack of response and notifying the Applicant that Deputy President Easton was considering dismissing his application under s 587 of the Act. The Applicant was directed to inform Chambers whether he wished to continue the application and, if he did, to explain his lack of response to earlier correspondence and directions, by close of business on 16 April 2025. Commission staff sent an SMS on 11 April 2025 alerting the Applicant to the correspondence. Chambers has, at the time of writing, received no response from the Applicant.

Section 587 of the Act 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 the Applicant has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s 587 of the Act. In the circumstances, I am satisfied that the facility under s 587(3)(a) can and should be engaged to dismiss the application. I make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Joshua Manning on 4 March 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Joshua Manning versus The Trustee for Ezytrail Newcastle Unit Trust, the applicant, Mr Joshua Manning, applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). The application was made on 4 March 2025, five days beyond the 21-day statutory deadline for lodging an unfair dismissal application. Mr Manning's dismissal took effect on 6 February 2025. The application was made at the Commission's initiative for want of prosecution under section 587 of the Act.

The legal issues that arose from this case pertained to the timeliness of the application and whether there were exceptional circumstances that justified the late filing. Under section 394(2) of the Act, an unfair dismissal application must be made within 21 days of the dismissal. The application must also be made within any additional time allowed by the Commission if it is satisfied that exceptional circumstances exist under section 394(3). The applicant was notified multiple times to provide reasons for the late filing and to explain his lack of response, but no response was provided. The central issue was whether Mr Manning's conduct or omissions showed that he was no longer willing to participate in his own case.

The Deputy President considered the statutory provisions and relevant case law. The Deputy President noted that section 587 of the Act allows the Commission to dismiss an application on its own initiative if the applicant is not willing to participate in the proceedings. The Deputy President concluded that Mr Manning had been given ample opportunity to provide a case for consideration but failed to respond to correspondence and directions. The Deputy President was satisfied that Mr Manning's conduct showed he was not willing to participate in the application, and therefore, the application was dismissed.

The final orders of the court were that the application under section 394 of the Fair Work Act 2009 (Cth) made by Mr Joshua Manning on 4 March 2025 is dismissed.

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Orders of the court

Background to the litigation

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Legal Principle Established