Frank Lucisano v Boral Resources (VIC) Pty Limited
[2024] FWC 1637
•21 JUNE 2024
| [2024] FWC 1637 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Frank Lucisano
v
Boral Resources (VIC) Pty Limited
(C2024/3362)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 21 JUNE 2024 |
Section 365 – no jurisdiction – application dismissed
The following is an edited version of a decision given on transcript today. Frank Lucisano has made an application under s 365 of the Fair Work Act 2009. Mr Lucisano was employed by Sehgal Logistics Pty Ltd (Sehgal) as a driver. Sehgal had a contract with Boral Resources (VIC) Pty Ltd (BR) to provide it with carriage services. It deployed Mr Lucisano to perform work under the contract. BR told Sehgal to cease doing so. Mr Lucisano’s employment with Sehgal later ended. BR says that he resigned. Mr Lucisano disputes this.
Section 365 states that, ‘if a person has been dismissed’, and alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. Clearly, the section contemplates a dismissal by the person’s employer (see s 386), and an allegation that the employer has contravened Part 3-1. In the present case, if Mr Lucisano was dismissed, he was dismissed by Sehgal, not BR. Mr Lucisano does not allege that Sehgal contravened Part 3-1. His application is against BR. It is not one that can be made under s 365.
Mr Lucisano proposed to amend his application. But no amendment could render it valid as against BR. Any proposed substitution of Sehgal as the respondent would not be an amendment but a fundamentally different application, which would now be out of time. And in any event, I would decline to allow an amendment on discretionary grounds. If Mr Lucisano wishes to make an application against Sehgal, he can lodge a new F8 and seek an extension of time. Note that this can only be granted if there are ‘exceptional circumstances’ (see s 366(2)).
The Commission has no power to deal with this matter. The application is dismissed.
DEPUTY PRESIDENT
Hearing details:
2024
Melbourne
21 June
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