Anna Zanin v Shane Peter Horvath

[2023] FWC 1464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anna Zanin
v

Shane Peter Horvath

(U2023/2364)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JUNE 2023

Application for an unfair dismissal remedy.

Anna Zanin (the applicant) began employment with Shane Peter Horvath (the respondent) on the 21^st of January 2022 and was allegedly dismissed on the 19^th of March 2023.

On the 21^st of March 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Freighters PTY LTD.
On the 25^th of May 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 1^st of June 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 2^nd of June 2023 and she was required to respond by the 7^th of June 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, her application would be dismissed without any further notice.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Anna Zanin brought an application against Shane Peter Horvath under section 394 of the Fair Work Act 2009, seeking a remedy for unfair dismissal. Zanin commenced employment with Horvath on 21 January 2022 and was allegedly dismissed on 19 March 2023. Horvath was trading under the business name of Freighters PTY LTD, as identified in the F3 – Employer’s Response Form. Zanin filed an application for unfair dismissal on 21 March 2023. The Commission found that there was a discrepancy in the respondent's legal business name and notified Zanin to respond to this discrepancy by 1 June 2023, with no response received. Further correspondence was sent to Zanin on 2 June 2023, with a response required by 7 June 2023 at 5:00pm, advising that if no response was received, the application would be dismissed without further notice. As of the date of the decision, Zanin had not responded to any correspondence from the Commission.

The primary legal issue for the Commission was whether the application could be dismissed for want of prosecution under section 587 of the Fair Work Act 2009. The Commission noted that section 587(1) provides that the Commission may dismiss an application if it is not made in accordance with the Act, or is frivolous or vexatious, or has no reasonable prospects of success. Further, section 587(3) allows the Commission to dismiss an application on its own initiative or on application. In this case, the Commission found that the application was not made in accordance with the Act due to the discrepancy in the respondent's legal business name and that Zanin had failed to respond to the Commission's correspondence. Therefore, the Commission decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act.

In light of the above, the Commission dismissed the application for want of prosecution. An order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established