Mr Mario Vasilj v Serco

[2024] FWC 2816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr Mario Vasilj
v

Serco

(U2024/7242)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 OCTOBER 2024

Application for relief from unfair dismissal – Lack of prosecution – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

On 24 June 2024, Mr Mario Vasilj filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

A conciliation conference was scheduled on 26 July 2024 however Mr Vasilj did not attend.

On 26 July 2024, correspondence was sent to Mr Vasilj in relation to his non-attendance and was asked to email his request to proceed with a further conciliation within 2 working days.

On the afternoon of 26 July 2024 Mr Vasilj text the Commission and advised why he wasn’t in attendance. The Commission responded to Mr Vasilj’s text and asked him to respond to the Commission’s letter that was emailed to him.

To date, Mr Vasilj has not responded to further to any of the Commission’s attempts to contact him.

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.”

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).

Further information was sought on 7 August 2024 from Mr Vasilj about whether he wishes to continue his claim

Mr Vasilj has been on notice of the likely consequences of his application if he does not respond.

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. In such circumstances the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

In the circumstances I have decided to dismiss Mr Vasilj’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR780091).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mr Mario Vasilj versus Serco, the applicant filed an application for relief from unfair dismissal under section 394 of the Fair Work Act 2009. The dispute pertains to the dismissal of Mr Vasilj from his employment by Serco, and the subsequent claim for unfair dismissal. The matter was before the Fair Work Commission, specifically Deputy President Easton, who presided over the case in Sydney on 9 October 2024.

The central legal issue that the Court had to resolve was whether Mr Vasilj's application for relief from unfair dismissal could be dismissed for want of prosecution, as per section 587 of the Fair Work Act 2009. This section empowers the Commission to dismiss an application if it has no reasonable prospects of success, particularly if the applicant has ceased to pursue or participate in the proceedings. The case hinged on whether Mr Vasilj's failure to respond to the Commission's attempts to contact him, including his non-attendance at a scheduled conciliation conference, constituted a lack of prosecution warranting dismissal.

Deputy President Easton found that Mr Vasilj's application was indeed without reasonable prospects of success due to his inactivity. The Commission had contacted Mr Vasilj multiple times regarding his non-attendance at the conciliation conference and his subsequent failure to respond to correspondence or further conciliation requests. The Deputy President noted that Mr Vasilj had been aware of the potential consequences of not responding to the Commission’s attempts to contact him. Given this lack of engagement, the Deputy President concluded that the application could be dismissed under section 587(3)(a) of the Act, as the Commission was not obliged to persist with the application. Consequently, the application was dismissed on the Commission's own initiative.

In light of the above, the Deputy President made an order dismissing Mr Vasilj's application for relief from unfair dismissal for want of prosecution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established