Mark Migala v Services Australia

[2025] FWC 108

[2025] FWC 108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Migala
v

Services Australia

(U2024/13180)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 JANUARY 2025

Application for an unfair dismissal remedy – lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 4 November 2024, Mr Mark Migala made an unfair dismissal application (the Application) to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow I am satisfied that the Application should be dismissed for want of prosecution.

1. On 14 November 2024, correspondence was sent to Mr Migala regarding his Application being lodged out of time. A text message was also sent to Mr Migala on that same day regarding his Application.

1. Mr Migala was provided with information about applying for an extension of time and was requested to provide a response by 22 November 2024.

1. To date Mr Migala has not provided any information concerning his Application being lodged outside the 21-day time limit.

1. Section 587 of the Act provides:

“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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The words, “Without limiting when the FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1).

1. Section 587 allows the Commission to dismiss an application if it is apparent that an applicant has stopped pursuing or participating in the proceedings they commenced. In such circumstances, the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. On 29 November 2024, Mr Migala was placed on notice that in the absence of contact from him by 5 December 2024, his Application may dismissed. Mr Migala was referred to s 587 of the Act. No response has been received.

1. I am satisfied that Mr Migala has demonstrated that he does not intend to prosecute his Application. Mr Migala has not responded to the attempts to contact him and has not addressed the issue regarding his Application having been filed out of time.

1. In the circumstances, I have decided to dismiss the Application on my own initiative pursuant to s.587(3)(a) of the Act for want of prosecution, it being evident that the Application has no prospects of success.

1. I have separately made an order to this effect (PR783222).

DEPUTY PRESIDENT

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