Mark Wood v SMC Holdings Batemans Bay Pty Ltd Summary

[2025] FWC 931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Wood
v

SMC Holdings Batemans Bay Pty Ltd

(U2025/69)

DEPUTY PRESIDENT EASTON

SYDNEY, 2 APRIL 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 2 January 2025, Mr Mark Wood made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Wood did not attend his telephone conciliation that was scheduled for 24 February 2025.

Commission staff tried to contact Mr Wood on 24 February and 27 February 2025 about whether he wants to continue his unfair dismissal claim. Mr Wood has not responded to the Commission’s correspondence and his representative has been unable to reach him.

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

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Mark Wood on 2 January 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mark Wood sought to remedy an alleged unfair dismissal by SMC Holdings Batemans Bay Pty Ltd. Mr Wood lodged his application under section 394 of the Fair Work Act 2009 on 2 January 2025. However, he did not attend the scheduled telephone conciliation on 24 February 2025, nor did he respond to subsequent attempts by the Commission to contact him regarding the continuation of his claim. His representative also failed to reach him. The Commission, in light of these circumstances, exercised its discretion under section 587 of the Fair Work Act to dismiss the application for want of prosecution.

The primary legal issue before the Deputy President was whether Mr Wood's failure to participate in the proceedings justified the dismissal of his application under section 587. Section 587 allows the Fair Work Commission to dismiss an application on its own initiative if the applicant's conduct or omissions indicate a lack of willingness to pursue the case. The precedent of Viavattene v Health Care Australia established that the Commission is not obligated to continue with an application if the applicant's disengagement is evident. Deputy President Easton considered whether Mr Wood had been given the opportunity to present his case and whether his non-participation warranted the dismissal of his unfair dismissal application.

Deputy President Easton concluded that Mr Wood had ample opportunity to present his case but failed to engage with the proceedings. The Commission's attempts to contact him went unanswered, and his representative was also unable to reach him. Given these circumstances, Deputy President Easton was satisfied that Mr Wood was no longer willing to pursue his claim. Consequently, the Deputy President dismissed the application under section 587 of the Fair Work Act. The dismissal order was made on 2 April 2025, officially terminating Mr Wood's unfair dismissal application.

Mark Wood v SMC Holdings Batemans Bay Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established