Robert Tan v City of Parramatta Council Summary

[2025] FWC 1457

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Robert Tan
v

City Of Parramatta Council

(U2025/1981)

DEPUTY PRESIDENT EASTON

SYDNEY, 27 MAY 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) for want of prosecution.

On 21 February 2025, Mr Robert Tan filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth).

Mr Tan alleged he was employed by City of Parramatta Council until he was dismissed on 31 January 2025. On 28 March 2025, City of Parramatta Council emailed chambers to say that Mr Tan was an employee of a labour hire company that provided contract staff to the Council for a short-term project.

On 27 March 2025, an email was sent to Mr Tan in relation to whether his former employer was a National System Employer and he was required to respond by 7 April 2025. An SMS was also sent to Mr Tan telling him that an important email had been sent. Mr Tan did not respond to this email.

A further email was sent to Mr Tan on 17 April 2025 and he was required to respond by 17 April 2025. Mr Tan was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Tan telling him that an important email had been sent. Mr Tan did not respond to this email

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

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.”

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. 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).

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]).

In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Tan’s application.

Mr Tan has been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

For these reasons I have decided to dismiss Mr Tan’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Robert Tan on 21 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Robert Tan v City of Parramatta Council, the applicant, Mr Robert Tan, sought a remedy for unfair dismissal under the Fair Work Act 2009 (Cth). Mr Tan claimed that he was dismissed by the City of Parramatta Council on 31 January 2025, which he alleged was unfair. The City of Parramatta Council responded that Mr Tan was an employee of a labour hire company contracted to provide staff for a short-term project. The dispute centred on whether Mr Tan's dismissal was justified and whether it was conducted in accordance with the Act.

The key legal issue before the court was whether the application could be dismissed under section 587(1)(c) of the Fair Work Act 2009 for want of prosecution. This section allows the Fair Work Commission to dismiss an application if it appears that the applicant has ceased to pursue or participate in the proceedings. The court needed to determine if Mr Tan had effectively abandoned his application by failing to respond to multiple communications from the Commission. The Commission had sent several emails and SMS notifications to Mr Tan, warning that his application might be dismissed if he did not respond. Mr Tan's failure to respond to these communications was central to the court's decision.

The court concluded that Mr Tan had not responded to any of the Commission's attempts to contact him and had been on notice of the potential consequences of his inaction. Given that Mr Tan did not engage with the proceedings despite multiple opportunities to do so, the court found that he had effectively abandoned his application. The court exercised its discretion under section 587(3)(a) of the Act to dismiss the application on its own initiative, ensuring that procedural fairness was maintained. The court dismissed Mr Tan's application for unfair dismissal on the grounds of want of prosecution.

The final orders of the court were that the application made by Mr Robert Tan under section 394 of the Fair Work Act 2009 on 21 February 2025 is dismissed. This decision reflects the court's authority to manage proceedings efficiently and its responsibility to ensure that applications are pursued in good faith.

Robert Tan v City of Parramatta Council

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established