Themi Roumeliotis v PCD Sleepers Pty Ltd Summary

[2025] FWC 396

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Themi Roumeliotis
v

PCD Sleepers Pty Ltd

(U2024/12293)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 FEBRUARY 2025

Application for an unfair dismissal remedy – lack of prosecution – dismissal under s.587(3)(a) at the Commission’s initiative - application has no reasonable prospects of success.

On 15 October 2024, Mr Themi Roumeliotis made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

A conciliation conference was scheduled on 12 November 2024, Mr Roumeliotis did not attend at the listed time, however he did eventually return the conciliator’s call and told the conciliator that he was unable to participate because of a family emergency.

A second conciliation conference was scheduled for 9 December 2024, Mr Roumeliotis did not attend.

Since then Mr Roumelitos 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.”

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).

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]).

In these circumstances I am satisfied that the facility under s.587(3)(a) can and should be engaged to dismiss Mr Roumeliotis’ application.

Mr Roumeliotis has been on notice of the likely consequences for his application if he does not respond. to the Commission’s inquiry. It is quite possible that he has abandoned his application.

For these reasons I have decided to dismiss Mr Roumeliotis’ application for want of prosecution and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Roumeliotis on 15 October 2024 is dismissed

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Themi Roumeliotis lodged an unfair dismissal application against PCD Sleepers Pty Ltd with the Fair Work Commission under section 394 of the Fair Work Act 2009. The application was made on 15 October 2024, and despite multiple opportunities, Mr Roumeliotis did not attend scheduled conciliation conferences, citing a family emergency, and subsequently failed to respond to further attempts by the Commission to contact him. The Deputy President, Easton, was tasked with determining whether the application could be dismissed under section 587 of the Act.

The primary legal issue was whether the Fair Work Commission had the authority to dismiss Mr Roumeliotis' application for want of prosecution. This involved interpreting section 587(3)(a) of the Fair Work Act, which permits the Commission to dismiss an application on its own initiative if it appears that the applicant has ceased to pursue or participate in the proceedings. The Deputy President considered whether Mr Roumeliotis' failure to attend and respond constituted a lack of prosecution warranting dismissal.

In dismissing the application, the Deputy President highlighted that section 587(1) of the Act establishes that the Commission's power to dismiss an application is not limited to the specific circumstances listed. The decision in Viavattene v Health Care Australia was cited to support the proposition that the Commission is not obliged to continue with an application if it is evident that the applicant has abandoned it. Given Mr Roumeliotis' non-participation and lack of response, the Deputy President concluded that his application had no reasonable prospects of success and could be dismissed under section 587(3)(a).

The Deputy President issued an order dismissing Mr Roumeliotis' application for unfair dismissal under section 394 of the Fair Work Act 2009. The dismissal was made on the basis of lack of prosecution, reflecting the applicant's failure to engage with the proceedings as required.

Themi Roumeliotis v PCD Sleepers Pty Ltd

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