Mark Lanza-Volpe v BME Solutions Pty Ltd Summary

[2025] FWC 1042

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Mark Lanza-Volpe
v

BME Solutions Pty Ltd

(U2024/13846)

DEPUTY PRESIDENT EASTON

SYDNEY, 14 APRIL 2025

Application for an unfair dismissal remedy – dismissal under s.587(1)(c) at the Commission’s initiative for want of prosecution.

On 19 November 2025, Mr Mark Lanza-Volpe made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) against BME Solutions Pty Ltd.

The Commission was informed that BME Solutions Pty Ltd has been placed into liquidation. Section 500(2) of the Corporations Act 2001 (Cth) provides as follows:

“After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

On 31 January 2025 and 6 March 2025 Commission staff sent correspondence to the parties regarding the liquidation process.

An ASIC search revealed that a “Notice of Winding Up Order” was issued on 10 October 2024 and that a hearing was to be held in the Supreme Court of Western Australia on 14 November 2024.
On 19 February 2025 Commission staff sent an email to Mr Lanza-Volpe asking him to indicate in intentions in relation to his unfair dismissal claim. Mr Lanza-Volpe has not replied to any of the above correspondence and does not appear to have taken any steps since December 2024 to pursue his claim.
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]).

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

In these circumstances I am satisfied that the facility under s .587 can and should be engaged to dismiss Mr Lanza-Volpe’s application for want of prosecution, and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Mark Lanza-Volpe on 19 November 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mark Lanza-Volpe filed an unfair dismissal application against BME Solutions Pty Ltd with the Fair Work Commission under the Fair Work Act 2009. The Commission was subsequently informed that BME Solutions Pty Ltd had been placed into liquidation, a fact confirmed by a search of ASIC records indicating a winding up order had been issued and a hearing scheduled. Despite multiple communications from Commission staff regarding the liquidation and its implications for Mr Lanza-Volpe’s claim, he did not respond or take any steps to advance his case since December 2024.

The central legal issue before the Deputy President was whether Mr Lanza-Volpe's failure to respond to the Commission's correspondence and his inaction since December 2024 constituted a lack of willingness to pursue his claim, thereby justifying the dismissal of his application under section 587 of the Fair Work Act 2009. This section empowers the Commission to dismiss an application if it lacks reasonable prospects of success or has been abandoned by the applicant.

After reviewing the case materials and the statutory provisions, the Deputy President concluded that Mr Lanza-Volpe's inaction and lack of response to the Commission's correspondence demonstrated his unwillingness to continue with his claim. This conclusion was supported by the precedent set in Viavattene v Health Care Australia, where it was held that if an applicant ceases to participate in their own case, the Commission is not obliged to proceed. Consequently, the Deputy President determined that the application should be dismissed under section 587(1)(c) for want of prosecution.

The final orders made by the Deputy President were that the unfair dismissal application made by Mr Mark Lanza-Volpe on 19 November 2024 was dismissed. This decision underscored the importance of active participation by applicants in their claims and the consequences of failing to engage with the Commission's processes.

Mark Lanza-Volpe v BME Solutions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established