Alex Ajiduah v Philip Long Store Pty Ltd

[2021] FWC 4695

[2021] FWC 4695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alex Ajiduah
v
Philip Long Store Pty Ltd
(U2021/4901)

VICE PRESIDENT CATANZARITI SYDNEY, 3 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 6 June 2021, Alex Ajiduah filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect to his employment with “Philip Long Store Pty Ltd” (Philip Long Store).

[2] Mr Ajiduah says he was employed by Philip Long Store for five years in total and became a permanent employee on 7 December 2020. Mr Ajiduah says he was dismissed on 19 May 2021.

[3] On 22 June 2021, Philip Leong Stores Pty Ltd filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mr Ajiduah did not serve the minimum employment period.

[4] My chambers sent correspondence to Mr Ajiduah on 13 July 2021 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information by no later than 20 July 2021. A response was not received from Mr Ajiduah.

[5] On 22 July 2021, further correspondence was sent to Mr Ajiduah directing him to provide a response by 4.00pm on 27 July 2021. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Ajiduah has not responded to any of the Commission’s correspondence.

[7] 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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] 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).

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

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

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