William Kelly v Workpac Pty Ltd

[2025] FWC 1189

[2025] FWC 1189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

William Kelly
v

Workpac Pty Ltd

(U2025/2395)

COMMISSIONER LIM PERTH, 29 APRIL 2025

Application for an unfair dismissal remedy – section 587 – application dismissed.

1. On Friday 28 February 2025, Mr William Kelly applied to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) contesting his dismissal by Workpac Pty Ltd.

1. I conducted a case management conference on Thursday 3 April 2025. Mr Kelly did not attend the case management conference. I subsequently listed the matter for arbitration and issued directions to the parties for the filing of material.

1. Mr Kelly was directed to file his materials by 12:00pm AWST, Thursday 17 April 2025. He did not comply with this direction. My Chambers wrote to Mr Kelly on Tuesday 22 April 2025 advising that the Commission had not received any materials from him and that the material must be provided by Wednesday 23 April 2025 along with a reason for the delay.

1. Mr Kelly did not file any material or give any reason for the delay.

1. On Wednesday 23 April 2025, my Chambers wrote to Mr Kelly again, informing him that in the absence of any material from him, I was considering dismissing his application under section 587 of the Act on the basis that the application has no reasonable prospects of success.

1. The correspondence directed Mr Kelly to provide any submissions on whether the application should or should not be dismissed by 12pm AWST, Monday 28 April 2025.

1. To date, Mr Kelly has not responded to any correspondence from 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. I refer the decision of Deputy President Easton in Bond v Carbridge Pty Ltd T/A Carbridge,[1] where at [11] – [16] of the decision the Deputy President summarised the relevant principles that apply to the exercise of the Commission’s power under s 587. I respectfully agree and adopt the Deputy President’s observations.

1. In this matter, I consider it appropriate to exercise my discretion to dismiss Mr Kelly’s application in accordance with s 587(3)(c) of the Act. Section 587 should be engaged cautiously. However, Mr Kelly did not attend the case management conference and has not filed any material in support of his application despite three separate opportunities to do so. Without his participation or material, his case has no reasonable prospects of success.

1. The application is therefore dismissed. An order will issue accordingly.[2]

COMMISSIONER

[1] [2024] FWC 1302.

[2] PR786523.

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