Sean McNaught v Altus Traffic Pty. Ltd Summary

[2025] FWC 1137

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Sean McNaught
v

Altus Traffic Pty. Ltd.

(U2025/1320)

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 6 February 2025, Mr Sean McNaught (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act2009 (Cth) (the Act).

The Applicant’s unfair dismissal case was scheduled for telephone conciliation conference with the Respondent on 17 March 2025. On that day, the Applicant’s representative and the conciliator made several attempts to contact him but were not successful.

The Chambers of Deputy President Easton emailed the Applicant on 31 March 2025 in relation to the Applicant’s non-appearance at the conciliation. The Applicant was directed to inform Chambers whether he wished to continue his unfair dismissal application, and the reasons why he did not attend the conciliation conference, by close of business on 7 April 2025. On 31 March 2025, Chambers 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. Commission staff 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 Sean McNaught on 6 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sean McNaught filed an application for unfair dismissal with the Fair Work Commission against Altus Traffic Pty. Ltd. on 6 February 2025. The application was scheduled for a telephone conciliation conference on 17 March 2025. However, McNaught did not appear for the conference, nor did his representative, despite multiple attempts to contact him. This absence led to a series of correspondences and notifications from the Fair Work Commission, seeking an explanation for his non-attendance and seeking to confirm his intention to continue with the application. Despite these efforts, McNaught did not respond to any of the communications from the Commission, prompting the consideration of dismissing his application under section 587 of the Fair Work Act 2009 for want of prosecution.

The legal issue before the Deputy President was whether the application should be dismissed under section 587 of the Act due to the applicant's failure to participate in the proceedings. The relevant section allows the Commission to dismiss an application if it appears that the applicant is no longer willing to participate in their own case. The Deputy President considered whether McNaught's conduct and omissions demonstrated a lack of interest in continuing with the application. The Commission had given McNaught multiple opportunities to respond to the notices and to justify his absence from the conciliation conference. However, there was no response from McNaught, leading the Deputy President to conclude that McNaught was not willing to participate in the proceedings.

The Deputy President concluded that McNaught had been adequately given the opportunity to present his case and had failed to respond to any of the Commission's attempts to contact him. The absence of any communication from McNaught, despite multiple notifications and reminders, indicated that he was not interested in continuing with the application. Therefore, the Deputy President was satisfied that the application should be dismissed under section 587 of the Act. The order made was that the application for unfair dismissal made by Sean McNaught on 6 February 2025 was dismissed.

Sean McNaught v Altus Traffic Pty. Ltd

CaseChat Overview and Summary

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