Shayne Kendall v Pearsons Transport

[2025] FWC 98

[2025] FWC 98

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shayne Kendall
v

Pearsons Transport

(U2024/12530)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 JANUARY 2025

Application for an unfair dismissal remedy – lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. On 21 October 2024, Mr Shayne Kendall made an unfair dismissal application (the Application) to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. A conciliation conference was scheduled on 13 November 2024. However, Mr Kendall did not attend.

1. On 13 November correspondence was sent to Mr Kendall in relation to his non-attendance at the conciliation conference and he was asked to email any request to proceed with a further conciliation within two working days. On that same date Mr Kendall emailed that he would be unable to attend ‘the meeting as I will be at Work’.

1. On 18 November 2024, a staff conciliator issued correspondence to the parties observing that the conciliation conference scheduled on 13 November 2024 had to be abandoned due to Mr Kendall’s non-attendance. Parties were informed that the matter would be allocated to a Member of the Commission.

1. On 27 November 2024, Chambers emailed the parties noting that it was unclear whether the Applicant wished to continue the Application. Mr Kendall was provided until 5 December 2024 to inform Chambers whether he wished to pursue his Application. Chambers’ email was followed by a telephone call to Mr Kendall on 29 November 2024, where a voice mail was left because Chambers had received an ‘undeliverable’ reply to its email dated 27 November 2024.

1. To date Mr Kendall has not responded to the Commission’s attempt to contact him since 29 November 2024.

1. 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.”

1. The words, “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s 587(1).

1. 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. In such circumstances, the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. On 27 November 2024, Mr Kendall was specifically invited to provide submissions on why his Application should not be dismissed under ss. 587(1)(a) or 587(1)(c), and a subsequent voicemail was left on Mr Kendall’s telephone to contact the Commission because of reasons detailed at paragraph [5] of this decision. Mr Kendall has not responded.

1. I am satisfied that Mr Kendall has demonstrated that he does not intend to prosecute his Application. Mr Kendall did not attend a conciliation conference before a staff member of the Commission and failed to give timely notice of his unavailability and has not responded to the attempts to contact him.

1. In the circumstances, I have decided to dismiss the Application on my own initiative pursuant to s.587(3)(a) of the Act for want of prosecution, it being evident that the Application has no prospects of success.

1. I have separately made an order to this effect (PR783196).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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