Kyal Jackson-Gillespie v Open2 Pty Ltd

[2024] FWC 3466

[2024] FWC 3466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Kyal Jackson-Gillespie
v

Open2 Pty Ltd

(U2024/7693)

COMMISSIONER LIM PERTH, 12 DECEMBER 2024

Application for an unfair dismissal remedy – company placed into liquidation – application cannot proceed except by leave of Court – application dismissed for want of prosecution.

1. On Thursday 12 September 2024 date, I handed down my decision in [2024] FWC 2468 regarding Mr Jackson-Gillespie’s application for an unfair dismissal remedy. In that decision, I found that Open2 Pty Ltd had unfairly dismissed Mr Jackson-Gillespie, but as neither party filed materials on remedy, I would conduct a second hearing to deal with the issue of remedy.

1. On Friday 8 November 2024 date, the Commission was notified that Open2 had been placed into liquidation. The Administrator advised of its position that under s 500(2) of the Corporations Act 2001 (Cth), Mr Jackson-Gillespie’s unfair dismissal application could not proceed except by leave of the Court.

1. On Monday 11 November 2024, my Chambers wrote to Mr Jackson-Gillespie to advise that he had until 12:00pm AWST on Monday 18 November 2024 to inform Chambers whether he had sought leave from a relevant Court to proceed with his unfair dismissal application. Mr Jackson-Gillespie was also put on notice that if he did not apply to a Court for leave, then I would consider dismissing his application under s 587 of the Act.

1. To date, Mr Jackson-Gillespie has not contacted my Chambers regarding his matter.

1. Section 587 of the Act states as follows:

“587      Dismissing applications

(1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

Note:    For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 does not limit the circumstances in which the Commission can consider dismissing an application.[1] The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.[2] There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.[3]

1. Mr Jackson-Gillespie has taken no steps to progress his matter. I consider it appropriate to exercise my discretion to dismiss Mr Jackson-Gillespie’s application for want of prosecution in accordance with s 587(3)(a) of the Act.

1. The application is therefore dismissed. An Order will issue accordingly.[4]

COMMISSIONER

[1] McLeod v Kulgera Trading Company Pty Ltd[2014] FWC 2112; Tomas v Symbion Health [2011] FWA 5458 [57]–[58].

[2] Fair Work Act 2009 (Cth) s 587(3)(a).

[3] Viavattene v Health Care Australia[2013] FWCFB 2532 [39].

[4] PR782369.

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