Sara Kerry v Eilbeck Cranes

[2025] FWC 627

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Sara Kerry
v

Eilbeck Cranes

(U2024/13913)

DEPUTY PRESIDENT EASTON

SYDNEY, 28 FEBRUARY 2025

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

On 21 November 2024, Mrs Sara Kerry made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mrs Kerry’s application raised a concern about her start date and the date her dismissal took effect.

Commission staff tried to contact Mrs Kerry on 26 November, 11 December 2024 and 29 January 2025 by telephone, email and SMS about these concerns. Mrs Kerry has not responded to the Commission’s inquiries.

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 Mrs Kerry 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 Mrs Kerry’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Sara Kerry on 21 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Sara Kerry v Eilbeck Cranes, the applicant, Mrs Sara Kerry, filed an unfair dismissal application with the Fair Work Commission under section 394 of the Fair Work Act 2009, claiming that her dismissal by Eilbeck Cranes was unfair. The application raised concerns about the start date and the effective date of her dismissal. The Fair Work Commission attempted to contact Mrs Kerry on multiple occasions to address these concerns, but she did not respond to these communications.

The legal issue the Commission had to decide was whether to dismiss the application for want of prosecution under section 587(1)(c) of the Fair Work Act. The Commission considered whether Mrs Kerry's failure to respond to their inquiries demonstrated that she was no longer willing to pursue her case. The Commission referenced Viavattene v Health Care Australia to support the proposition that the Commission is not required to persevere with an application if the applicant's conduct shows they are no longer interested in participating in their own case.

After considering the circumstances, the Deputy President concluded that Mrs Kerry had ample opportunity to present her case on all material matters. Given her lack of response to the Commission's attempts to contact her, the Deputy President found that the application should be dismissed for want of prosecution. Consequently, the application was dismissed under section 587 of the Fair Work Act.

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