Max Clarke v SKF Australia Pty. Ltd Summary

[2025] FWC 2741

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Max Clarke
v

SKF Australia Pty. Ltd.

(U2025/9989)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

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

On 14 June 2025, Mr Max Clarke made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Clarke’s application raised a concern about whether Mr Clarke had worked the minimum employment period.

Mr Clarke indicated in his Form F2 Unfair Dismissal Application that he commenced employment with SKF Australia Pty Ltd on 23 June 2025 and that his dismissal took effect on 10 June 2025. The nominated start date of 23 June 2025 is obviously an error.

Commission staff tried to contact Mr Clarke on 19 June and 7 July 2025 about this concern by telephone calls and email. Mr Clarke has not responded to provide any further information that supports his eligibility to make the application.

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

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Max Clarke on 14 June 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the case of Max Clarke v SKF Australia Pty Ltd was heard and determined. The applicant, Max Clarke, sought an unfair dismissal remedy against his former employer, SKF Australia Pty Ltd. The dispute centred around the procedural aspect of Mr Clarke's application, particularly the start date of his employment and his failure to respond to attempts by the Commission to rectify an obvious error in the date provided. The Commission was required to decide whether Mr Clarke's application could be dismissed for want of prosecution under s.587 of the Fair Work Act 2009.

The legal issue for the Commission to determine was whether Mr Clarke's conduct, specifically his failure to respond to communications from the Commission regarding the incorrect employment start date, warranted the dismissal of his application under s.587 of the Act. The Commission considered whether Mr Clarke had ceased to be willing to participate in his own case. The authority for dismissing an application under these circumstances was derived from the case of Viavattene v Health Care Australia, which established that if an applicant's omissions show a lack of willingness to proceed, the Commission is not obligated to continue with the application. The Commission further considered whether Mr Clarke had been given sufficient opportunity to present his case on all material matters.

The Deputy President of the Commission, Easton, concluded that Mr Clarke had indeed failed to respond to attempts by the Commission to address the error in his employment start date. The Deputy President found that Mr Clarke had been provided with multiple opportunities to rectify the error but had not done so. Based on this, the Deputy President was satisfied that Mr Clarke had ceased to be willing to participate in his own case and that the application could be dismissed under s.587. Consequently, the application made by Mr Clarke under s.394 of the Fair Work Act 2009 was dismissed.

Max Clarke v SKF Australia Pty. Ltd

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