Brett Miller v Rinnai Australia Pty Ltd

[2019] FWC 6733

[2019] FWC 6733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Miller
v
Rinnai Australia Pty Ltd
(U2019/9000)

VICE PRESIDENT CATANZARITI SYDNEY, 1 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 14 August 2019, Brett Miller applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). He named his former employer as Rinnai Australia Pty Ltd (Rinnai).

[2] On 28 August 2019, Rinnai filed an Employer’s Response (Form F3) to Mr Miller’s application. Rinnai objected to the application on the basis that Mr Miller was never its employee. Rinnai asserted that the applicant had been employed by Action Workforce and performed work for Rinnai via a labour hire arrangement. It also attached to its Form F3 a letter from Action Workforce dated 27 August 2019. The letter stated:

“To Whom It May Concern,

Brett Miller has been employed by Action Workforce since June,2016 [sic] and has not been dismissed by the company.

Brett Miller has represented Action Workforce at host clients such as Rinnai located at 62 Elizabeth Street, Wetherill Park, NSW. While Brett Miller was engaged at Rinnai, he was employed by Action Workforce at all times. After his engagement ended at Rinnai, Brett Miller continues to be employed by Action Workforce.”

[3] On 16 September 2019, my chambers sent correspondence to Mr Miller asking whether he still pressed his application against Rinnai, or if he wished to request to amend his application to name another entity as the respondent. He was directed to respond by 4:00 pm on 23 September 2019. However, no response was received.

[4] On 24 September 2019, my chambers sent further correspondence to Mr Miller, directing him to respond by 4:00 pm on 27 September 2019, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Miller 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.

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR712859>