Christopher Craig v Bradschell Pty Ltd T/A Muffler Man

[2020] FWC 5447

[2020] FWC 5447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Craig
v
Bradschell Pty Ltd T/A Muffler Man
(U2020/11146)

VICE PRESIDENT CATANZARITI SYDNEY, 13 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Christopher Craig was employed by Bradschell Pty Ltd T/A Muffler Man (Muffler Man). Mr Craig says he was employed from 5 February 2018 until he was dismissed on 6 August 2020.

[2] On 17 August 2020, Mr Craig made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 27 August 2020, Bradschell Pty Ltd T/A Muffler Man filed an Employer’s Response (form F3) raising a jurisdictional objection on the basis that Mr Craig did not serve the minimum employment period. Muffler man said in its form F3 that Mr Craig was employed from 1 October 2019 to 18 August 2020 and it employed less than 15 people at the time of Mr Craig’s dismissal.

[4] The matter was referred to me to determine the jurisdictional objection. Correspondence was sent to Mr Craig on 25 September 2020 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information by no later than 4:00pm on 2 October 2020. A statement regarding the minimum employment period jurisdictional objection was not received from Mr Craig.

[5] On 6 October 2020, further correspondence was sent to Mr Craig directing him to provide a response by 4.00pm on 9 October 2020. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Craig has not provided a response to the minimum employment period jurisdictional objection.

[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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