William Kelly v Workpac Pty Ltd Summary

[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.

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.

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.

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.

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

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.

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.

To date, Mr Kelly has not responded to any correspondence from the Commission.

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.”

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.

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.

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

COMMISSIONER

[1] [2024] FWC 1302.

[2] PR786523.

Printed by authority of the Commonwealth Government Printer

William Kelly filed an application against Workpac Pty Ltd with the Fair Work Commission, claiming unfair dismissal under section 394 of the Fair Work Act 2009. Mr Kelly contested his termination by the company, seeking a remedy for what he perceived as unjust dismissal. The matter was assigned to Commissioner Lim, who was tasked with determining the merits of Mr Kelly's application.

The primary legal issue before the Commission was whether Mr Kelly's application had reasonable prospects of success and whether it could be dismissed under section 587 of the Act. The court had to consider Mr Kelly's failure to attend the case management conference, his non-compliance with filing deadlines, and the absence of any supporting material submitted despite multiple opportunities to do so. These factors influenced the decision on whether the application could proceed or be dismissed.

Commissioner Lim concluded that Mr Kelly's application should be dismissed under section 587(3)(c) of the Act due to the lack of reasonable prospects of success. The decision was based on Mr Kelly's failure to participate in the proceedings and his disregard for the Commission's directions. The Commissioner referenced the principles outlined in the Bond v Carbridge Pty Ltd decision, reinforcing the need for cautious use of the dismissal power under section 587. Ultimately, without any input from Mr Kelly, his case could not proceed, and the application was dismissed.

The Commission issued an order dismissing Mr Kelly's application for unfair dismissal. The order reflects the Commissioner's determination that the application lacked reasonable prospects of success and was appropriately dismissed under the Act.

William Kelly v Workpac Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established