Getting fired. Angry boss pointing female employee on exit way.

Legal Standing in unfair dismissal proceedings

Victoria Quayle ||

Have you ever wondered if you can stand in the shoes of a deceased applicant and continue their unfair dismissal proceedings on their behalf? This very question was addressed by the Fair Work Commission late last year in the Walker v Collins Transport [2019] case.

Mr Walker claimed that he was unfairly dismissed by his employer, Collins Transport Group, and lodged an unfair dismissal application. As a first step, the matter went to a conciliation conference with the Commission but was unresolved.


  • Unfortunately, Mr Walker was involved in a fatal truck driving accident in late September 2019 and sadly passed away; and,
  • Mr Walker’s next of kin, Ms Ronayne, was advised of Mr Walker’s unfair dismissal proceedings and she subsequently discontinued them. However, the Commission was of the view that a key issue remained to be decided: is another person able to “stand in the shoes” of the deceased after his or her death and continue with the proceedings.

Previous cases

After considering the principles expounded in Rohrlach v LM Robertson [2018] and Stan v Frontline [2014], two cases which have dealt with this issue previously, Commissioner Platt found that:

Mr Walker’s death prevents Ms Ronayne from either pursuing or discontinuing the application as the right to apply for an unfair dismissal remedy cannot be assigned to another person. There is no possibility of making findings about or cross-examining the facts that are in dispute in respect of the application. I find that the application has no reasonable prospects of success and accordingly dismiss it.”

So, what does the Fair Work Act 2009 (Cth) and the Commission Rules say about the ability of another person to continue an applicant’s unfair dismissal claim after death?

Section 394 of the Fair Work Act gives a person the right to make an unfair dismissal application, not an entitlement to the remedy itself. The Commission Rules do not make any provision for the continuance of unfair dismissal proceedings in the event an applicant dies, nor does the Fair Work Act enable substitution of a party – that is, allow another person to “step in”.

In Stan v Frontline, DP Gostencnik stated:

“…the nature of the right to apply for the remedy, combined with the ‘personal and discretionary nature of the remedy’ that may be awarded to a successful Applicant, makes it unlikely that the right to bring and pursue the application would constitute ‘something that may be assigned, transmitted, devolved or passed to another person even assuming there is power to make such an order’.”


Therefore, in the event that an applicant dies after he or she has lodged their application, the matter will be dismissed by the Commission.

If you have any questions or require further assistance in relation to unfair dismissal applications, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Employment Law team.


Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.


More posts

Can i put my home on Airbnb?

Airbnb is a form of short-term rental accommodation. To add your property to Airbnb in NSW, you are required to meet several laws and regulations governing short-term rentals.

When are liquidators required to seek approval to retain legal counsel?

When does a liquidator (or the company he or she is appointed to) need court, creditor, or committee approval to validly retain a solicitor to act in a liquidation matter which is likely to extend for longer than three months?  The answer to this question has only recently been settled.

Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

The NSW Building Commission’s extraordinary powers

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023 (Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it extraordinary powers to enter construction sites, inspect work and take away information and materials.

© 2024 Coleman Greig Lawyers   |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230