Stoyan Nakov v Delta FM Australia Pty Ltd

[2024] FWC 755

[2024] FWC 755

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stoyan Nakov
v

Delta FM Australia Pty Ltd

(U2023/12561)

COMMISSIONER LIM PERTH, 22 MARCH 2024

Application for an unfair dismissal remedy

1. On 15 December 2023, Stoyan Nakov (the Applicant) applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy in respect of their dismissal by Delta FM Australia Pty Ltd (the Respondent).

1. I conducted a case management conference on 28 February 2024. I subsequently listed the matter for hearing and issued directions to the parties for the filing of material.

1. The Applicant was due to file his materials by 4:00pm AWST, 13 March 2024. He did not comply with this direction. My Chambers wrote to the Applicant on 14 March 2024 advising that the Commission had not received any materials from him and that the material must be provided by the next business day along with a reason for the delay.

1. The Applicant did not file any material or give any reason for the delay.

1. Further correspondence was sent on 15 March 2024 informing the Applicant that in the absence of any material from him, I was considering dismissing his application under section 587 of the Act for failure to comply with the directions and on the basis that he was not properly pursuing the application.

1. The correspondence directed the parties to provide any submissions on why or why not the application should or should not be dismissed by 4:00pm AWST, 19 March 2024.

1. To date, the Applicant has not provided any further correspondence or materials to the Commission. The Respondent also did not provide any submissions to the Commission.

1. Section 587 of the Act states as follows:

“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.

Note:    For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 587 does not limit the circumstances in which the Commission can consider dismissing an application.[1] The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.[2]  There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.[3] 

1. In this matter, I consider it appropriate to exercise my discretion to dismiss Mr Nakov’s application for want of prosecution in accordance with s 587(3)(a) of the Act.

1. The application is therefore dismissed. An order will issue accordingly.[4]

COMMISSIONER

[1] McLeod v Kulgera Trading Company Pty Ltd[2014] FWC 2112; Tomas v Symbion Health [2011] FWA 5458, [57]–[58].

[2] Fair Work Act 2009 (Cth) s 587(3)(a).

[3] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].

[4] PR772661

Printed by authority of the Commonwealth Government Printer

<PR772658>