Frank Lucisano v Boral Resources (VIC) Pty Limited

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Frank Lucisano sought to challenge what he described as his dismissal by Boral Resources (VIC) Pty Ltd. Mr Lucisano had been employed by Sehgal Logistics Pty Ltd as a driver, under a contract with Boral to provide carriage services. Following Boral's direction to Sehgal to cease using Mr Lucisano for these services, Mr Lucisano's employment with Sehgal ended. Boral maintains that Mr Lucisano resigned, while Mr Lucisano disputes this and believes he was dismissed. The legal issue the Deputy President had to determine was whether the Commission had jurisdiction to hear Mr Lucisano's application under section 365 of the Fair Work Act 2009.

The Fair Work Act provides that an employee who has been dismissed and who believes the dismissal contravened Part 3-1 of the Act, can apply to the Commission to deal with the dispute. However, the section clearly applies to a dismissal by the employee's employer, and an allegation of contravention of the Act by that employer. In Mr Lucisano's case, if he had been dismissed, it was by Sehgal, not Boral. There was no allegation that Sehgal contravened Part 3-1. The application was thus against Boral, and could not be heard under section 365. The Deputy President also noted that any amendment to the application would not be valid as against Boral, and would in any event be declined on discretionary grounds. If Mr Lucisano wished to pursue his claim against Sehgal, he could lodge a new application and seek an extension of time, but only if there were exceptional circumstances.

The Deputy President dismissed the application, stating that the Commission had no power to deal with the matter. The decision highlights the importance of correctly identifying the employer in dismissal applications under the Fair Work Act. The Deputy President made clear that the Commission cannot hear claims against an employer where that employer was not the one that dismissed the employee. The decision also underscores the Commission's strict approach to amendments to applications, and the need for applicants to ensure that they make their claims against the correct party.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established