Kade Benham v Linfox Summary

[2025] FWC 2698

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Kade Benham
v

Linfox

(U2025/9241)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 SEPTEMBER 2025

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

On 30 May 2025, Mr Kade Benham made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Benham did not attend a telephone conciliation conference scheduled for 25 June 2025.

Commission staff tried to contact Mr Benham on 25 June, 30 June and 30 July 2025 about whether he wants to continue his unfair dismissal claim. Mr Benham has not responded to the Commission’s inquiries.

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

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Kade Benham on 30 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Kade Benham versus Linfox, the Fair Work Commission dismissed Mr Benham's unfair dismissal application, initiated under section 394 of the Fair Work Act 2009. The application, which was filed on 30 May 2025, sought to challenge his dismissal from employment. The dismissal was carried out by Linfox under section 587 of the Act, on the Commission's initiative due to the applicant's failure to prosecute the matter. The crux of the issue lay in Mr Benham's non-attendance at a scheduled telephone conciliation conference on 25 June 2025 and his subsequent failure to respond to follow-up communications from Commission staff on 25 June, 30 June, and 30 July 2025.

The primary legal issue that the Commission had to address was whether the applicant's conduct or omissions indicated that he was no longer willing to pursue his case. The Commission referenced previous case law, specifically Viavattene v Health Care Australia, to support its stance that if an applicant's conduct or omissions demonstrate a lack of willingness to participate in their own case, the Commission is not obligated to continue with the application. The Deputy President found that Mr Benham had ample opportunity to present his case for consideration on all matters pertinent to the decision to dismiss the application under section 587.

In light of the foregoing, the Deputy President concluded that the provisions of section 587 could and should be invoked to dismiss Mr Benham's application. The Commission's decision was grounded on the premise that the applicant had not engaged with the proceedings, thereby failing to demonstrate a genuine intention to pursue his claim. Consequently, the application made by Mr Benham on 30 May 2025 was dismissed under section 394 of the Fair Work Act 2009.

Kade Benham v Linfox

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Background to the litigation

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Legal Principle Established