Ben Macklin v Kymira Pty Ltd

[2020] FWC 2469

[2020] FWC 2469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ben Macklin
v
Kymira Pty Ltd
(U2020/3474)

VICE PRESIDENT CATANZARITI SYDNEY, 11 MAY 2020

Application for an unfair dismissal remedy.

[1] Ben Macklin states he was employed by Kymira Pty Ltd (the respondent) from 11 July 2019 until his dismissal took effect on 16 March 2020. On 24 March 2020, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 8 April 2020, the respondent filed an Employer’s Response (Form F3), objecting to Mr Macklin’s application on multiple bases, including that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent said that it was a small business employer, and therefore the applicable minimum employment period was one year.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Macklin on 24 April 2020, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 1 May 2020. However, we received no response from Mr Macklin by that time.

[4] On 4 May 2020, my chambers sent further correspondence to Mr Macklin, directing him to provide a response by 4:00 pm on 7 May 2020. He was advised that in the absence of a reply, his application may be dismissed.

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

[6] 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.”

[7] The words, “[w]ithout 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).

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

VICE PRESIDENT

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