Amira El-Haj v Mi Casa Cafe T/A Cafee Treasury Pty Ltd

[2021] FWC 3650

[2021] FWC 3650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amira El-Haj
v
Mi Casa Cafe T/A Cafee Treasury Pty Ltd
(U2021/2971)

VICE PRESIDENT CATANZARITI SYDNEY, 24 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 9 April 2021, Amira El-Haj 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).

[2] Miss El-Haj says she began her employment with “Mi Casa Café T/A Cafee Treasury Pty Ltd” on 1 January 2020 and was dismissed on 28 March 2021.

[3] Cafee Treasury Pty Ltd T/A MiCasa Café filed an Employers Response (form F3) on 21 April 2021 raising a jurisdictional objection on the basis that Miss El-Haj did not serve the minimum employment period.

[4] My chambers sent correspondence to Miss El-Haj on 9 June 2021 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 4:00pm on 16 June 2021. A response was not received from Miss El-Haj.

[5] On 17 June 2021, further correspondence was sent to Miss El-Haj directing her to provide a response by 4.00pm on 22 June 2021. She was advised that in the absence of a reply her application may be dismissed.

[6] To date, Miss El-Haj 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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