David Da Costa Martins v Witan Holdings Pty Ltd

[2024] FWC 658

[2024] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Da Costa Martins
v

Witan Holdings Pty Ltd

(U2023/11354)

DEPUTY PRESIDENT EASTON SYDNEY, 13 MARCH 2024

Application for an unfair dismissal remedy

1. David Da Costa Martins (the Applicant) was employed by Witan Holdings Pty Ltd (the Respondent) from May 2020 until they were dismissed on 28 October 2023.

1. On 16 November 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent raised the jurisdictional objection that the Applicant was not an employee. The Respondent submitted that the Applicant was a labour hire employee and that they were only the host employer.

1. On 19 February 2024, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and they were required to respond by 26 February 2024. No response was received at this time.
   
   

2. Further correspondence was sent to the Applicant on 27 February 2024 and they were required to respond by 5:00pm on 1 March 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received.

1. On 27 February 2024, the Applicant’s representative filed a Form F54, Notice of a Representative ceasing to Act, which was forwarded to all parties for their information. In this correspondence, the Applicant was reminded again of the deadline to respond to the jurisdictional issue by 1 March 2024.

1. On 4 March 2024 the Commission attempted to contact the Applicant via telephone. However, the Applicant could not be reached. A voicemail message was left advising the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if they did not contact the Commission the application may be dismissed without further notice.

1. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

1. 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).

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

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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