Scott Daniel Brodie v Australian Spatial Analytics Ltd
[2024] FWC 3602
•30 DECEMBER 2024
| [2024] FWC 3602 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Daniel Brodie
v
Australian Spatial Analytics Ltd
(U2024/12401)
| DEPUTY PRESIDENT EASTON | SYDNEY, 30 DECEMBER 2024 |
Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative – dismissal for want of prosecution.
Mr Scott Brodie was employed by Australian Spatial Analytics Ltd until he was dismissed on 24 September 2024. On 16 October 2024, Mr Brodie filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).
Mr Brodie’s application appears to have been filed outside of the 21 day statutory timeframe by 1 day.
On 4 November 2024, an email and SMS was sent to Mr Brodie in relation to the application being lodge out of time and he was required to respond by 12 November 2024. Mr Brodie did not respond to this email.
A further email was sent to Mr Brodie on 22 November 2024 and he was required to respond by 29 November 2024. Mr Brodie was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Brodie telling him that an important email had been sent.
To date, Mr Brodie 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 Brodie’s application.
Mr Brodie has also 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 Brodie’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.
I have separately made an order to this effect (PR782887).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR782886>
0