Dean Wojtkiewicz v Aquasol Summary

[2023] FWC 275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dean Wojtkiewicz
v

Aquasol

(U2022/11890)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 FEBRUARY 2023

Application for an unfair dismissal remedy.

Dean Wojtkiewicz (the applicant) was employed by Aquasol (the respondent) from the 22^nd of October 2021 until he was dismissed on the 13^th of December 2022.

On the 15^th of December 2022, 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 Savage Corporation Pty Ltd.
On the 12^th of January 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 19^th of January 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 20^th of January 2023 and he was required to respond by the 5:00pm 25^th of January 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
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

Dean Wojtkiewicz, an employee, has filed an application for unfair dismissal against Aquasol, his former employer, following his dismissal from employment on 13 December 2022. Aquasol was represented by Savage Corporation Pty Ltd. The applicant filed an application for a remedy under section 394 of the Fair Work Act 2009 on 15 December 2022. The Commission, through correspondence, sought clarification on the legal business name discrepancy, and the applicant failed to respond to multiple requests for information. The Commission found that the application was not being prosecuted and, as such, dismissed the application under section 587(3)(a) of the Act.

The primary legal issue for the Commission to determine was whether the applicant's failure to respond to correspondence regarding the discrepancy in the legal business name constituted grounds for dismissal of the application under section 587(3)(a) of the Act. The Commission considered the language of section 587(1) of the Act and concluded that it was not limited to the specific circumstances outlined in subsections (1)(a), (b), and (c). Consequently, the Commission found that it had the authority to dismiss the application on its own initiative for want of prosecution.

In dismissing the application, the Commission relied on section 587(3)(a) of the Act, which allows for the dismissal of an application on its own initiative. The Commission noted that the applicant had failed to respond to multiple requests for information and correspondence regarding the discrepancy in the legal business name. The Commission found that the applicant's failure to respond constituted a lack of prosecution and, as such, the application was dismissed. The Commission also noted that the applicant had not responded to any correspondence sent by the Commission, which further supported the decision to dismiss the application.

The Commission ordered that the application be dismissed for want of prosecution. The dismissal of the application means that the applicant's claim for unfair dismissal will not proceed any further. The Commission's decision is final and binding, and the applicant has no right to appeal. The respondent is not entitled to any costs or compensation as a result of the dismissal.

Dean Wojtkiewicz v Aquasol

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established