Liam Boehme v Backstage Agency

[2025] FWC 1133

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Liam Boehme
v

Backstage Agency

(U2025/2356)

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 28 February 2025, Mr Liam Boehme (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). Under section 394(3), a further period to lodge an application may be allowed if the Commission is satisfied that exceptional circumstances exist. The Applicant’s application, lodged on 28 February 2025, was thus one day late.

The Chambers of Deputy President Easton emailed the Applicant on 26 March 2025 noting that it appeared that the application was filed one day 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. On 26 March 2025, an SMS was also sent to the Applicant advising that an important email had been sent. 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 Liam Boehme on 28 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission addressed the case of Liam Boehme versus Backstage Agency, which involved an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. The dismissal of Mr Boehme took effect on 6 February 2025, and his application was lodged on 28 February 2025, one day beyond the statutory 21-day limit for such applications. The Commission was tasked with determining whether exceptional circumstances justified the delay and whether the application should be dismissed for want of prosecution under section 587 of the Act.

The primary legal issue was whether Mr Boehme's application, which was one day late, could be accepted despite the statutory time limit. Section 394(3) of the Act allows for an extension if exceptional circumstances exist, but the Commission must be satisfied on the basis of the applicant's response. Mr Boehme was notified multiple times about the lateness of his application and was given opportunities to explain the delay, but he did not respond to these communications. The Commission had to decide if his failure to respond to correspondence and directions constituted a lack of willingness to participate in his own case.

In its decision, the Commission concluded that Mr Boehme had been given sufficient opportunities to address the lateness of his application and to explain any exceptional circumstances that might justify an extension. Since he did not respond, the Commission found that he had not demonstrated a willingness to participate in his own case. Therefore, the application was dismissed for want of prosecution under section 587 of the Act.

The Fair Work Commission ordered that the application made by Mr Liam Boehme on 28 February 2025 be dismissed. This decision was made based on the applicant's failure to respond to correspondence and directions regarding the lateness of his application, leading to the conclusion that he was no longer willing to participate in his own case.

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