Nicholas Nielsen v Brisbane City Council

[2025] FWC 1142 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Nicholas Nielsen
v

Brisbane City Council

(U2025/2651)

DEPUTY PRESIDENT BEAUMONT

PERTH, 24 APRIL 2025

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

On 7 March 2025, Mr Nicholas Nielsen (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act2009 (Cth) (the Act).

Brisbane City Council (the Respondent) objected to the unfair dismissal application because it says it is not a National System Employer.

The Respondent contended that s 26(1) of the Act provides that it ‘is intended to apply to the exclusion of all State or Territory industrial laws so far as they would otherwise apply in relation to a national system employee or a national system employer.’ Further, s 14(1) of the Act, stipulates the categories of employers which are ‘national system employers’, and, according to the Respondent, the Respondent is not within a category of employer classified as a ‘national system employer’ under s 14(1).

The Chambers of Deputy President Easton emailed the Applicant on 26 March 2025 in relation to the jurisdictional objection of the Respondent that it was not a national system employer. The Applicant was directed to inform Chambers of the basis upon which he said that the Respondent was a national system employer by close of business on 4 April 2025. On 26 March 2025, Chambers also sent the Applicant an SMS alerting him to this correspondence. Chambers received no response.

A final notice was emailed to the Applicant on 11 April 2025 noting the lack of response and notifying the Applicant that Deputy President Easton was considering dismissing his application under s 587 of the Act. The Applicant was directed to inform Chambers whether he wished to continue the application and, if he did, to explain his lack of response to earlier correspondence and directions, by close of business on 16 April 2025. Chambers sent an SMS on 11 April 2025 alerting the Applicant to the correspondence. Chambers has, at the time of writing, received no response from the Applicant.

Section 587 of the Act 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 the Applicant has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s 587 of the Act. In the circumstances, I am satisfied that the facility under s 587(3)(a) can and should be engaged to dismiss the application. I make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Joshua Manning on 7 March 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Nicholas Nielsen versus Brisbane City Council involved an application for an unfair dismissal remedy. The Applicant, Mr Nicholas Nielsen, filed the application under Section 394 of the Fair Work Act 2009, claiming unfair dismissal by the Respondent, Brisbane City Council. The Council objected on the grounds that it was not a National System Employer, arguing that it did not fall under the categories outlined in Section 14(1) of the Act. The Deputy President, Beaumont, was tasked with deciding whether the application should be dismissed for want of prosecution due to the Applicant's failure to respond to multiple notices and directions from the Commission.

The primary legal issue was whether the Brisbane City Council qualified as a National System Employer under the Fair Work Act 2009. Additionally, the court had to determine if Mr Nielsen's failure to respond to the Commission's communications constituted sufficient grounds for dismissing the application under Section 587 of the Act. The court was required to weigh the procedural requirements of the Act against the Applicant's rights and obligations in the proceedings.

In addressing the jurisdictional objection, Deputy President Beaumont noted that the Applicant had been given multiple opportunities to respond and justify the Council's status as a National System Employer. However, the Applicant failed to provide any response, despite receiving reminders and final notices. Given the Applicant's inaction, Deputy President Beaumont concluded that the application could be dismissed under Section 587(3)(a) for want of prosecution. The court found that the Applicant's lack of response indicated a lack of willingness to proceed with the case. Consequently, the application was dismissed, and no unfair dismissal remedy was granted.

The final order of the court was to dismiss the unfair dismissal application made by Mr Nicholas Nielsen under Section 394 of the Fair Work Act 2009. The dismissal was based on the Applicant's failure to respond to the Commission's notices and directions, effectively abandoning the proceedings.

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Background to the litigation

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