Lufuende Dodo-Balu v

[2024] FWC 3432

[2024] FWC 3432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Lufuende Dodo-Balu

v

Silver Chain Group Limited

(U2024/11575)

COMMISSIONER LIM PERTH, 9 DECEMBER 2024

Application for an unfair dismissal remedy – section 587 – application dismissed.

1. On Sunday 29 September 2024, Mr Lufuende Dodo-Balu applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy in respect of his dismissal by Silver Chain Group Limited.

1. I conducted a case management conference on Thursday 21 November 2024. I subsequently listed the matter for hearing and issued directions to the parties for the filing of material.

1. Mr Dodo-Balu was directed to file his materials by 12:00pm AWST, Thursday 5 December 2024. He did not comply with this direction. My Chambers wrote to Mr Dodo-Balu on Thursday 5 December 2024, advising that the Commission had not received any materials from him and that the material must be provided by the next business day along with a reason for the delay.

1. Mr Dodo-Balu did not file any material or give any reason for the delay.

1. On Friday 6 December 2024, my Chambers wrote to Mr Dodo-Balu again, informing him that in the absence of any material from him, I was considering dismissing his application under section 587 of the Act for failure to comply with the directions and on the basis that he was not properly pursuing the application.

1. The correspondence directed the parties to provide any submissions on why or why not the application should or should not be dismissed by 4:00pm AWST, Monday 9 December 2024.

1. Silver Chain provided submissions in support of Mr Dodo-Balu’s application being dismissed on the basis that Mr Dodo-Balu had not complied with an order of the Commission and his application has no reasonable prospects of success.

1. To date, Mr Dodo-Balu has not made any contact with the Commission.

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. In this matter, I consider it appropriate to exercise my discretion to dismiss Mr Dodo-Balu’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

Determined on the papers.

[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] PR782230.

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