Ahmad Samim Ahmadyar v The Trustee for the Catalano Unit Trust

[2023] FWC 3214

[2023] FWC 3214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ahmad Samim Ahmadyar
v

The Trustee For The Catalano Unit Trust

(U2023/3990)

VICE PRESIDENT CATANZARITI SYDNEY, 5 DECEMBER 2023

Application for an unfair dismissal remedy

1. Ahmad Samim Ahmadyar (the Applicant) was employed by The Trustee For The Catalano Unit Trust (the Respondent) from 8 March 2016 until he was dismissed on 1 May 2023.

1. On 9 May 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent did not file an Employer’s Response (Form F3).

1. On 14 June 2023, the Liquidator, WA Insolvency Solutions informed the Fair Work Commission that the Respondent had gone into creditors’ voluntary liquidation. The Liquidator declined to attend the conciliation and the matter was referred to my Chambers.

1. On 16 June 2023 correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and was requested to provide a response regarding the respondent’s liquidation and obtaining leave of the Court to progress his matter.  No response was received.

1. Further correspondence was sent to the Applicant on 13 September 2023 as a follow-up.  No response was received.

1. On 14 November 2023 a final notice was sent to the Applicant who was required to respond by 5:00pm on 20 November 2023. The Applicant was advised his application would be dismissed without any notice if no response was received.

1. The Applicant provided a response with further information about the dismissal and to advise that he was unfairly dismissed.

1. A response was sent from my Chambers to the Applicant reiterating that as the respondent is in liquidation the Applicant requires permission from the Court for his matter to proceed.  Information was provided about the Fair Entitlements Guarantee to pursue any entitlements.  No response was received.

1. A second final notice was emailed to the Applicant on 27 November enquiring as to whether the Applicant has obtained permission from the Court to progress his matter. The Applicant was directed to respond by 30 November 2023 and if there is no response provided his matter will be dismissed.

1. To date, the Applicant has not responded to the second final notice sent by my Chambers.

1. 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.”

1. 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).

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

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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