Adam Capella v Princess Alexandra Hospital Summary

[2025] FWC 2745

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Adam Capella
v

Princess Alexandra Hospital

(U2025/11713)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative for want of prosecution.

On 15 July 2025 Mr Adam Capella made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The Form F3 response filed by Princess Alexandra Hospital raised a jurisdiction objection that Mr Capella was not a national system employee.

Commission staff tried to contact Mr Capella on 13 August, 26 August and 5 September 2025 about this concern.

On 13 and 15 August 2025 Mr Capella left voice messages to call as he has some questions. Commission staff called on 26 August 2025 and left a voice message to say an email will be sent regarding the concern.

On 26 June 2025, an email was sent to Mr Capella in relation to whether his former employer was a National System Employer and he was required to respond by 2 September 2025. Mr Capella was advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Capella telling him that an important email had been sent.

Mr Capella 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 Capella 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 Capella’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Adam Capella on 15 July 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Mr Adam Capella for a remedy for unfair dismissal against Princess Alexandra Hospital. The application was made under section 394 of the Fair Work Act 2009 (Cth) and related to Mr Capella's dismissal under section 587 of the Act. The Hospital raised an objection to the Commission's jurisdiction on the basis that Mr Capella was not a national system employee, a contention that the Commission attempted to resolve through multiple communications with Mr Capella, including voice messages and emails. Despite these attempts, Mr Capella did not respond to any of the Commission's correspondence.

The legal issue before the Commission was whether Mr Capella's failure to respond to the Commission's correspondence constituted a lack of willingness to pursue his application, justifying the dismissal of his application under section 587. The Commission referenced the case of Viavattene v Health Care Australia, where it was held that the Commission could dismiss an application if the applicant's conduct showed a lack of willingness to participate in the proceedings. The Commission found that Mr Capella had sufficient opportunity to respond to the concerns raised and had not done so, leading to the conclusion that he was no longer willing to participate in his own case.

In light of Mr Capella's unresponsiveness, the Deputy President Easton concluded that the application should be dismissed under section 587 for want of prosecution. The Commission made an order dismissing Mr Capella's application under section 394 of the Fair Work Act 2009 (Cth).

Adam Capella v Princess Alexandra Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established