Alexander Thurgar v AMX Superstores Pty Ltd

[2024] FWC 1485

[2024] FWC 1485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alexander Thurgar
v

AMX Superstores Pty Ltd

(U2024/4162)

DEPUTY PRESIDENT EASTON SYDNEY, 11 JUNE 2024

Application for an unfair dismissal remedy

1. Mr Alexander Thurgar was dismissed from his employment on 24 March 2024. On 12 April 2024, Mr Thurgar filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. In his application Mr Thurgar named “AMX Superstores Pty Ltd” as his former employer.

1. In its F3 – Employer’s Response Form the respondent indicated that its legal name is “GPC Asia Pacific Pty Ltd” and its trading name is “AMX Superstore.”

1. An unfair dismissal application should be lodged against the entity that employed the Applicant.

1. On 21 May 2024, correspondence was sent to Mr Thurgar regarding the legal name of his former employer. The correspondence invited Mr Thurgar to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. Mr Thurgar was required to respond by 28 May 2024. An SMS was also sent to Mr Thurgar telling him that an important email had been sent. Mr Thurgar did not respond to this correspondence.

1. Further correspondence was sent to Mr Thurgar on 31 May 2024, requiring him to respond by 5:00pm on 5 June 2024. Mr Thurgar was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Thurgar telling him that an important email had been sent. Mr Thurgar did not respond to this correspondence.

1. To date, Mr Thurgar has not responded to any of the Commission’s attempts to contact him.

1. Section 587 of the Act provides:

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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. 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]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Thurgar’s application. The Commission’s query about the legal name of the respondent was administrative and should have been resolved very quickly to allow Mr Thurgar’s claim to progress. However Mr Thurgar appears to have walked away from his claim.

1. Mr Thurgar has been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry.

1. For these reasons I have decided to dismiss Mr Thurgar’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR775756).

DEPUTY PRESIDENT

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