Bozidar Gacesa v Canso Pty Ltd T/A Preston Nissan

[2023] FWC 178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bozidar Gacesa
v

Canso Pty Ltd T/A Preston Nissan

(U2021/2859)

COMMISSIONER BISSETT

MELBOURNE, 20 JANUARY 2023

Application for an unfair dismissal remedy

On 6 April 2021 Mr Bozidar Gacesa (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging he was unfairly dismissed by Canso Pty Ltd T/A Preston Nissan (the Respondent).

On 13 April 2021 the Commission was made aware that the Respondent had entered external administration. On 10 June 2021 a Decision[1] was issued staying the matter until leave of a Court was granted.

On 6 January 2023 the Commission sent correspondence to Mr Gacesa’s nominated email address advising him that his matter is at risk of being dismissed as it is apparent he does not intend to seek the leave of the Court. Mr Gacesa was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Mr Gacesa.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Mr Gacesa, I am satisfied that Mr Gacesa’s application has no reasonable prospects of success.

As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

[1] [2021] FWC 3347

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bozidar Gacesa, sought a remedy for unfair dismissal against Canso Pty Ltd T/A Preston Nissan, the respondent, under section 394 of the Fair Work Act 2009. The matter was brought before the Fair Work Commission, which was tasked with determining whether the dismissal was indeed unfair. The respondent had entered external administration, which necessitated a temporary stay of the proceedings until the leave of a court was granted. Despite being notified of the risk of dismissal due to inactivity, Mr Gacesa did not respond to the Commission's correspondence, prompting the Commission to assess the prospects of the application.

The primary legal issue before the Commission was whether the applicant's application had any reasonable prospects of success, particularly in light of the respondent's external administration and the applicant's inaction to seek the required court leave. The Commission had to consider the statutory provisions under section 587 of the Fair Work Act, which allows for the dismissal of an application if it is not made in accordance with the Act, is frivolous or vexatious, or lacks reasonable prospects of success. Given the circumstances, the Commission concluded that the applicant's inaction and the absence of any response to the Commission's notice indicated that the application had no reasonable prospects of success.

In its decision, the Commission found that Mr Gacesa's application for unfair dismissal did not meet the criteria for proceeding, especially as he had failed to seek the necessary court leave despite being informed of its requirement. The Commission determined that the application was at risk of dismissal under section 587(1)(c) of the Fair Work Act due to its lack of reasonable prospects of success. Consequently, the Commission dismissed the application.

The Fair Work Commission ordered that Mr Gacesa's application for unfair dismissal be dismissed pursuant to section 587(1)(c) of the Fair Work Act. This decision effectively concludes the proceedings in this matter, as the Commission found no reasonable prospects for the application's success.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established