Glen Marchwicki v Phillip Weatherley

[2024] FWC 1357

[2024] FWC 1357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Glen Marchwicki
v

Phillip Weatherley

(U2024/3502)

DEPUTY PRESIDENT EASTON SYDNEY, 3 JUNE 2024

Application for an unfair dismissal remedy

1. Mr Glen Marchwicki was dismissed from his employment on 10 March 2024. On 28 March 2024, Mr Marchwicki filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth). In his application Mr Marchwicki named “Phillip Weatherley” as his former employer.

1. The legal business name nominated by the Respondent in its F3 – Employer’s Response Form was “Phillip Weatherley Plumbing Pty Ltd.”

1. On 30 April 2024, correspondence was sent to Mr Marchwicki raising an administrative query about the legal name of his former employer. The correspondence invited Mr Marchwicki to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. Mr Marchwicki was required to respond by 7 May 2024. Mr Marchwicki did not respond to this correspondence.
   
   

2. On 8 May 2024, further correspondence was sent to Mr Marchwicki making the same request. Mr Marchwicki was required to respond by 14 May 2024. Mr Marchwicki was also advised that his application may be dismissed without further notice if he did not respond. Mr Marchwicki did not respond to this correspondence.

1. On 15 May 2024, the Commission attempted to contact Mr Marchwicki via telephone. However, Mr Marchwicki could not be reached. A voicemail message was left advising Mr Marchwicki to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission his application would be dismissed without further notice.

1. On the same day my Chambers missed a call from Mr Marchwicki. No voicemail was left. My chambers returned this call however Mr Marchwicki could not be reached. A voicemail message was left advising Mr Marchwicki to respond to the correspondence as soon as possible.

1. To date, Mr Marchwicki has not provided a response to the administrative legal name query raised with him.

1. Section 587 of the Act provides:

587  Dismissing applications

(a)   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.

…

(3) The FWC may dismiss an application:

(b)   on its own initiative; or

(c)   on application.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

2. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Marchwicki’s application. The Commission’s query about the legal name of the respondent was administrative and should have been resolved very quickly to allow Mr Marchwicki’s claim to progress.

1. Mr Marchwicki has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

2. For these reasons I have decided to dismiss Mr Marchwicki’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR775289).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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