Junjie Cai v Telstra Corporation Limited

[2025] FWC 925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Junjie Cai
v

Telstra Corporation Limited

(U2024/15628)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 APRIL 2025

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

On 24 December 2024, Mr Junjie Cai made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Cai did not attend his telephone conciliation that was scheduled for 31 January 2025.

Commission staff tried to contact Mr Cai on 31 January, 5 February and 18 February 2025 about whether he wants to continue his unfair dismissal claim.. Mr Cai 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 Cai 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 Cai’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Junjie Cai on 24 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Junjie Cai filed an unfair dismissal application against Telstra Corporation Limited with the Fair Work Commission, citing the dismissal as a breach of the Fair Work Act 2009. Mr Cai was scheduled for a conciliation meeting on 31 January 2025, but did not attend. The Commission made several attempts to contact Mr Cai in February 2025 regarding his ongoing participation in the case, but received no response. As a result of Mr Cai's lack of engagement, the Commission initiated a dismissal of the application under Section 587 of the Fair Work Act 2009. This section allows the Commission to dismiss a case if it appears that the applicant is no longer willing to pursue their claim.

The primary legal issue before the Commission was whether Mr Cai's failure to attend the scheduled conciliation meeting and respond to correspondence warranted the dismissal of his application under Section 587 of the Fair Work Act 2009. The Commission had to determine if Mr Cai's conduct indicated a lack of interest in continuing with the proceedings. The case law in Viavattene v Health Care Australia provided precedent for the Commission's consideration, establishing that a lack of participation could justify dismissal.

The Commission found that Mr Cai had been given multiple opportunities to engage with the proceedings but had not responded to attempts to contact him. Given the lack of participation and response, the Commission was satisfied that Mr Cai was no longer willing to pursue his unfair dismissal claim. Therefore, the Commission exercised its discretion under Section 587 to dismiss the application. The decision was made in accordance with the principles established in Viavattene v Health Care Australia, where it was noted that the Commission is not obligated to continue with a case if the applicant does not demonstrate ongoing interest.

The Fair Work Commission ordered the dismissal of Junjie Cai's application for unfair dismissal against Telstra Corporation Limited. The dismissal was made under Section 587 of the Fair Work Act 2009 due to Mr Cai's lack of participation and response to correspondence. The decision to dismiss was based on the precedent set in Viavattene v Health Care Australia, which supports the dismissal of cases where the applicant shows no interest in pursuing their claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established