Wojcik v Region Peak Transport

[2016] FWC 2794

[2016] FWC 2794

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Walter Wojcik
v
Region Peak Transport T/A Rocbrix Pty Ltd
(U2015/16633)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 5 MAY 2016
Application for relief from unfair dismissal.

[1]        On 9 December 2015, Mr Walter Wojcik made an application for relief from unfair

dismissal against Region Peak Transport T/A Rocbrix Pty Ltd.

[2]        On 22 January 2016, Senior Deputy President Watson granted Mr Wojcik an

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extension of time to file his application as it was made outside of the 21 day timeframe.

[3]        Directions were issued and the matter was set down for hearing in April 2016.

[4]        Mr Wojcik complied with directions and filed the material he wished to rely on 23

February 2016.

[5]        On 17 March 2016, the Commission was informed by Rocbrix that Mr Wojcik had

passed away unexpectedly on 16 March 2016. On 24 March 2016, further correspondence

from Rocbrix confirmed this advice.

[6]        The hearing scheduled for 4 April 2016 was cancelled and the matter was referred to

me in my capacity as Head of the Termination of Employment Panel.

[7]        Mrs Wojcik contacted the Commission and advised that she wanted the hearing to

proceed and have Mr Wojcik’s application heard.

[8]        On 6 April 2016, I sent correspondence to Mrs Wojcik and advised that, unfortunately,

my preliminary view was that Mr Wojcik’s application had no reasonable prospects of

success. This is because the Fair Work Act 2009 does not have an express provision on how

to deal with the continuation of proceedings commenced in the event of death of an

Applicant. I advised Mrs Wojcik that in such circumstances the Commission must consider

issues such as representation of the Applicant throughout the proceedings, procedural matters

(such as testing unsworn evidence) and if successful, consideration of an appropriate remedy

and outcome to the claim.
[2016] FWC 2794

[9]        I requested that if Mrs Wojcik wanted to pursue Mr Wojcik’s application for unfair

dismissal to respond to the following concerns I raised, namely:

	Who will represent Mr Wojcik’s interests to determine his unfair dismissal claim;
	Were there any other witnesses who could give evidence of the facts relied upon by
Mr Wojcik to support the claim that his dismissal was unfair;

 Would Rocbrix will be denied procedural fairness if evidence is admitted, from

material prepared by Mr Wojcik, which could not be cross-examined; and

	If the Commission determines that Mr Wojcik’s employment was terminated unfairly,
what would be an appropriate outcome for his claim.

[10]      I asked Mrs Wojcik to respond to my concerns by 20 April 2016. I advised that as

soon as I receive her response, I will give Rocbrix an opportunity to put submissions in reply

to me for consideration.

[11]      Mrs Wojcik did not respond to the correspondence and I have not sought any views or

further information from Rocbrix.

[12]      As was advised to Mrs Wojcik, I have formed the view that this matter cannot proceed

any further. Section 587(1)(c) of the Act provides the Commission with the power to dismiss

an application if that application has no reasonable prospects of success. I consider that it

would be unfair to both parties if the matter were to continue without the ability to properly

test the material and evidence filed in the claim. I will therefore dismiss Mr Wojcik’s

application pursuant to s.587(1)(c) of the Act. An order giving effect to this decision will also

be issued.

DEPUTY PRESIDENT

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PR576296, [2016] FWC 405.