Matthew Southurst v The Trustee for Paterson Bros Unit Trust

[2024] FWC 3130

[2024] FWC 3130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Southurst
v

The Trustee for Paterson Bros Unit Trust

(U2024/9897)

DEPUTY PRESIDENT EASTON SYDNEY, 13 NOVEMBER 2024

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 24 August 2024, Mr Matthew Southurst filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A conciliation conference was scheduled on 3 October 2024 however Mr Southurst did not attend.

1. On 3 October 2024, correspondence was sent to Mr Southurst in relation to his non-attendance and was asked to email any request to proceed with a further conciliation within 2 working days. 

1. To date, Mr Southurst has not responded to any of the Commission’s attempts to contact him.

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 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 the 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. Mr Southurst has been on notice of the likely consequences of his application if he does not respond.

1. In the circumstances I have decided to dismiss Mr Southurst’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR781210).

DEPUTY PRESIDENT

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