Adrian Mercuri v Exclusive Construction
[2025] FWC 626
•28 FEBRUARY 2025
| [2025] FWC 626 |
| FAIR WORK COMMISSION |
| DECISION and ORDER |
Fair Work Act 2009
s.394—Unfair dismissal
Adrian Mercuri
v
Exclusive Construction
(U2024/13686)
| DEPUTY PRESIDENT EASTON | SYDNEY, 28 FEBRUARY 2025 |
Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.
On 16 November 2024, Mr Adrian Mercuri made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).
Mr Mercuri’s application raised concerns about whether Mr Mercuri had served the minimum employment period of 12 months. In the Form F3 response Exclusive Construction indicated that it had 4 employees, that the employment commenced on 25 March 2024 and that the dismissal took effect on 1 November 2024. If Exclusive Construction is correct Mr Mercuri was employed for approximately 7 months.
Further, the Respondent identified that its legal name is Exclusive Construction Machinery & Equipment Pty Ltd. Mr Mercuri was asked if he considers that he correctly named the Respondent and if not, he may seek to amend the name of the Respondent to Exclusive Construction Machinery & Equipment Pty Ltd.
Attempts to contact Mr Mercuri were made on 10 January and 6 February 2025 by email and SMS about these concerns. Mr Mercuri has not responded.
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 Mercuri 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 Mercuri’s application. I make the following order:
1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Adrian Mercuri on 16 November 2024 is dismissed.
DEPUTY PRESIDENT
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