Joshua Young v The Trustee for Mi Property Unit Trust

[2025] FWC 874

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Young
v

The Trustee For Mi Property Unit Trust

(U2025/778)

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 23 January 2025, Mr Joshua Young made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Young’s application raised a concern about whether his application was filed within the 21 day time limit.

Commission staff tried to contact Mr Young on 6 February and 18 February 2025 by email and SMS about this concern. Mr Young has not responded to the Commission’s correspondence.

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

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Joshua Young on 23 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Joshua Young v The Trustee for Mi Property Unit Trust involves an application for an unfair dismissal remedy that was dismissed by the Fair Work Commission under section 587 of the Fair Work Act 2009. The applicant, Mr Joshua Young, filed an application on 23 January 2025, raising concerns about his dismissal under section 587(1)(c) at the Commission's initiative for want of prosecution. The primary issue before the Deputy President was whether Mr Young's application was filed within the requisite 21-day time limit and whether his subsequent lack of response to correspondence from the Commission justified the dismissal of his application under section 587 of the Act.

Deputy President Easton reviewed the procedural history and noted that Commission staff had attempted to contact Mr Young on multiple occasions via email and SMS to address concerns about the timeliness of the application. Despite these efforts, Mr Young did not respond to any correspondence. The Deputy President referenced the precedent set in Viavattene v Health Care Australia, which establishes that the Commission is not required to proceed with an application if the applicant’s conduct or omissions indicate a lack of willingness to participate in their own case. Given Mr Young's unresponsiveness, the Deputy President concluded that the application could be dismissed under section 587 as Mr Young had effectively abandoned his case.

In light of the above, the Deputy President dismissed Mr Young's application for unfair dismissal remedy. The decision was made on the basis that Mr Young had not engaged with the Commission's attempts to address the procedural concerns and had shown no interest in pursuing his application further. The dismissal order was issued, effectively concluding the proceedings in Mr Young's favour.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established