Bryce McDonald- Eyles v Demco Commercial Pty Ltd

[2024] FWC 660

[2024] FWC 660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bryce McDonald- Eyles
v

Demco Commercial Pty Ltd

(U2024/316)

VICE PRESIDENT CATANZARITI SYDNEY, 13 MARCH 2024

Application for an unfair dismissal remedy

1. Bryce McDonald- Eyles (the Applicant) was employed by Demco Commercial Pty Ltd (the Respondent) from 20 February 2023 until they were dismissed. The date of dismissal was in dispute.

1. On 9 January 2024, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Applicant stated the date of dismissal was 20 December 2023, while the Respondent stated the date of dismissal was 18 December 2023. If the Respondent was correct, the Applicant’s application appeared to have been filed outside of the 21-day statutory timeframe by 1 day.

1. The Respondent also raised the jurisdictional objection that the Applicant did not complete the minimum employment period. Sections 382 and 383 of the Act require an applicant to be ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’. The minimum employment period is 6 months if the former employer does not identify as a small business. A small business is when the employer has fewer than 15 employees. In the case that an employer is a small business, the minimum employment period is 12 months.

1. On 19 February 2024, correspondence was sent to the Applicant in relation to the jurisdictional issues mentioned above and they were required to respond by 26 February 2024. No response was received at this time.
   
   

2. Further correspondence was sent to the Applicant on 27 February 2024 and they were required to respond by 5:00pm on 1 March 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received.

1. As the Applicant did not provide a nominated contact number, further correspondence was sent to the Applicant on 4 March 2024 and they were required to respond by 5:00pm on 11 March 2024. It was in this correspondence that the Applicant was advised the application would be dismissed without any notice if no response was received.

1. To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. 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).

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

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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