Robert Clancy v Mendi Constructions Pty Ltd Summary

[2023] FWC 3088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Clancy
v

Mendi Constructions Pty Ltd

(U2023/4917)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 NOVEMBER 2023

Application for an unfair dismissal remedy

Robert Clancy (the Applicant) was employed by Mendi Constructions Pty Ltd (the Respondent) from 24 October 2022 until he was dismissed on 23 May 2023.

On the 4 June 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The Respondent raised an objection in the F3 – Employer’s Response Form stating that the Applicant was not an employee of the Respondent. The Applicant was employed on an on-hire basis through WLH Professional Services Pty Ltd, a labour hire organisation.

On the 14 July 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 21 July 2023.

The Applicant provided a response advising that “No I wasn't employed by Mendi but I had worked with them for over 7 months through Western Labor Hire.”

My Chambers responded with information that the Applicant may wish to amend the name of the company, and may do so by filing a Form F1, or he may wish to file his claim against a different employer by discontinuing this matter and relodging against the new employer.

Further correspondence was sent to the Applicant on the 16 August 2023 and 13 September 2023 requesting an update. No response was received.

On 15 November 2023 a final notice was emailed to the Applicant and he was required to respond by 5:00pm the 21 November 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.
To date, the Applicant has not responded to the final notice email sent by my Chambers.

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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a)       is frivolous or vexatious; or
(b)       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).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether Robert Clancy had been unfairly dismissed by Mendi Constructions Pty Ltd. Mr Clancy applied for a remedy under Section 394 of the Fair Work Act 2009, claiming that he had been dismissed without just cause or reason. However, the Respondent, Mendi Constructions, argued that Mr Clancy was not actually their employee, but rather had been hired through a labour hire company, WLH Professional Services Pty Ltd. The Commission needed to determine whether it had jurisdiction to hear the case, as Mr Clancy's employment status was in question.

The central issue before the Commission was whether Mr Clancy was an employee of Mendi Constructions Pty Ltd or if he was employed through a labour hire arrangement with WLH Professional Services Pty Ltd. If Mr Clancy was not an employee of Mendi Constructions, the Commission would lack jurisdiction to hear his unfair dismissal claim against that company. Additionally, the Commission had to consider whether the Applicant had complied with procedural requirements by responding to correspondence regarding the jurisdictional issue. The procedural fairness and the application's merits under Section 394 of the Act were also considered.

The Vice President found that Mr Clancy was not an employee of Mendi Constructions but was instead engaged through WLH Professional Services Pty Ltd. Despite multiple opportunities, Mr Clancy did not respond to correspondence from the Commission regarding this jurisdictional issue, nor did he amend his claim to the correct employer. As a result, the Vice President concluded that the application was not made in accordance with the Act and had no reasonable prospects of success. The Vice President exercised the Commission's power under Section 587(3)(a) of the Act to dismiss the application for want of prosecution.

The Fair Work Commission dismissed Robert Clancy's application for an unfair dismissal remedy against Mendi Constructions Pty Ltd for want of prosecution. The Commission found that Mr Clancy was not an employee of the Respondent, and despite multiple opportunities, he failed to respond to correspondence regarding the jurisdictional issue. Consequently, the application was dismissed without any further notice.

Robert Clancy v Mendi Constructions Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established