Alyssa Baillache v Elegant Eyebrows NSW Pty Ltd T/A Elegant Eyebrows

[2019] FWC 3319

[2019] FWC 3319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alyssa Baillache
v
Elegant Eyebrows NSW Pty Ltd T/A Elegant Eyebrows
(U2019/1194)

VICE PRESIDENT CATANZARITI SYDNEY, 15 MAY 2019

Application for an unfair dismissal remedy.

[1] Ms Alyssa Baillache was employed by Elegant Eyebrows NSW Pty Ltd T/A Elegant Eyebrows (Elegant Eyebrows) from 15 May 2018 until she was dismissed on 1 February 2019.

[2] On 5 February 2019, Ms Baillache made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 11 March 2019, Elegant Eyebrows filed an Employers Response (form F3) raising two jurisdictional objections on the basis that Ms Baillache did not serve the minimum employment period and that Elegant Eyebrows is a small business employer and it complied with the Small Business Fair Dismissal Code.

[4] The matter was referred to me to determine the minimum employment period jurisdictional objection. Correspondence was sent to Ms Baillache on 10 April 2019 requiring her to provide a statement to support her claim that she had served the minimum employment period. She was asked to provide the information by no later than 17 April 2019. No response was received from Ms Baillache.

[5] On 7 May 2019, further correspondence was sent to Ms Baillache directing her to provide a response by 4.00pm on 13 May 2019. She was advised that in the absence of a reply her application may be dismissed.

[6] To date, Ms Baillache 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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