Mr Stephen Bradford v Buy the Loaf Pty Ltd

[2025] FWC 236

[2025] FWC 236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Stephen Bradford
v

Buy The Loaf Pty Ltd

(U2024/9743)

DEPUTY PRESIDENT EASTON SYDNEY, 24 JANUARY 2025

Application for an unfair dismissal remedy – application dismissed under s.587(3).

1. On 16 August 2024 Mr Stephen Bradford made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Mr Bradford’s application should be dismissed for want of prosecution.

1. Section 587 of the Fair Work Act 2009 (Cth) (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. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant is not pursuing or participating in the proceedings they commenced (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. On 5 December 2024 the matter was listed for a telephone directions hearing. Mr Bradford’s representative attended the direction hearing and indicated that she had not been able to contact Mr Bradford. Directions were made on that day, including a direction requiring Mr Bradford to file his materials by 30 December 2024.

1. No materials were filed.

1. A follow up email was sent to Mr Bradford on 3 January 2025 advising that:

“If an extension of time is required, please seek the consent of the Respondent (Buy The Loaf Pty Ltd) and specify a date and time you require an extension until and your request will be referred to the Deputy President for his consideration. Failure to comply with the Directions may result in the matter being dismissed under s.587 for want of prosecution.”

1. Mr Bradford did not respond to this email at all and still has not filed any evidence or submissions.

1. On 15 January 2025 Mr Bradford was directed to file submissions as to why his application should not be dismissed under s.587 of the Act by 20 January 2025. On the same day Mr Bradford’s representative filed a notice indicating that they no longer acted for him.

1. Eventually Mr Bradford did make contact with the Commission. On 22 January 2025, being two days after the deadline and more than three weeks after his materials were due, Mr Bradford sent an email (reproduced here in full):

   “I would like to proceed I have only just got the emails come thru”

1. Mr Bradford did not offer any explanation for why his materials were not filed or why he had not responded to the previous correspondence.

1. Mr Bradford was allowed a further short extension to provide submissions as to why his application should not be dismissed under s.587 of the Act. Those submissions were to be filed by no later than 4:00pm on 23 January 2025. An SMS was also sent to Mr Bradford advising that an important email had been sent.

1. Mr Bradford sent an email 17 minutes before that extended deadline expired in the following terms (reproduced in full):

   “I would like to apply for extention for 2 weeks to speak with my solicitor in regards to the matter and gather further details and details”

2. As far as I can tell Mr Bradford has not taken any steps at all to pursue or participate in his proceedings. He has had several opportunities to explain why no evidence has been filed and to explain why he has provided no satisfactory responses to the Commission’s attempts to bring the matter back on track. As the Full Bench said in Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]:

   “…There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to [also] bear in mind that there is a respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381)”

1. Mr Bradford has been on notice of the likelihood that his application could be dismissed. He has not filed any evidence or submissions and neither of his two brief and unhelpful emails to the Commission offer any hope that he will do so in the foreseeable future.

1. I have separately made an order dismissing Mr Bradford’s application (PR783671).

DEPUTY PRESIDENT

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