Tristan Prosser v Fire and Embers Pty Limited

[2025] FWC 916

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Tristan Prosser
v

Fire And Embers Pty Limited

(U2024/14702)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 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 December 2024, Mr Tristan Prosser made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

A telephone conciliation conference was scheduled to take place on 8 January 2025. The conference was adjourned at the last minute at Mr Prosser’s request. A further conference was scheduled for 7 February 2025 however Mr Prosser failed to attend.

Commission staff tried to contact Mr Prosser on 7 February and 18 February 2025 about whether he wants to continue his unfair dismissal claim. Mr Prosser has not responded to the Commission’s correspondence.

Section 587 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 Mr Prosser has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Prosser’s application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Tristan Prosser on 6 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Tristan Prosser, lodged an unfair dismissal application against his former employer, Fire and Embers Pty Limited, under section 394 of the Fair Work Act 2009. The matter was brought to the Fair Work Commission, with Deputy President Easton presiding over the case. The crux of the dispute was whether Mr Prosser's application should be dismissed for want of prosecution.

The legal issue the court had to decide was whether Mr Prosser's conduct justified dismissal of his application under section 587 of the Fair Work Act. Section 587 allows the Fair Work Commission to dismiss an application if the applicant's conduct or omissions indicate they are no longer willing to pursue their case. The Commission considered whether Mr Prosser had taken steps to ensure his application was prosecuted and if he had responded to the Commission's attempts to contact him regarding the matter.

Deputy President Easton examined Mr Prosser's failure to attend scheduled conciliation conferences and his lack of response to correspondence from the Commission. The Deputy President found that Mr Prosser had not shown any willingness to continue with his application and concluded that the application could be dismissed under section 587. The Deputy President was satisfied that Mr Prosser had been given ample opportunity to present his case and that his inaction warranted dismissal of the application. Consequently, the application was dismissed, and an order was made to that effect.

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