Emil Vartazarian v Cool Breeze Clothing Pty Ltd T/A Dimmeys Summary

[2023] FWC 176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emil Vartazarian
v

Cool Breeze Clothing Pty Ltd T/A Dimmeys

(U2020/3145)

COMMISSIONER BISSETT

MELBOURNE, 20 JANUARY 2023

Application for an unfair dismissal remedy

On 17 March 2020 Mr Emil Vartazarian (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging he was unfairly dismissed by Cool Breeze Clothing Pty Ltd T/A Dimmeys (the Respondent).

On 28 April 2020 the Commission was made aware that the Respondent had entered external administration. On 26 May 2020 a Decision[1] was issued staying the matter until leave of a Court was granted.

On 6 January 2023 the Commission sent correspondence to Mr Vartazarian’s nominated email address advising him that his matter is at risk of being dismissed as it is apparent he does not intend to seek the leave of the Court. Mr Vartazarian was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Mr Vartazarian.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Mr Vartazarian, I am satisfied that Vartazarian’s application has no reasonable prospects of success.

As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

[1] [2020] FWC 2596

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Emil Vartazarian v Cool Breeze Clothing Pty Ltd T/A Dimmeys involves an application by Mr Emil Vartazarian for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Mr Vartazarian alleged that he was unfairly dismissed by Cool Breeze Clothing Pty Ltd, trading as Dimmeys. The matter was initially heard by Commissioner Bissett in Melbourne on 20 January 2023, following a series of procedural steps, including a stay of the matter pending court leave which was never sought.

The primary legal issue before the court was whether Mr Vartazarian's application for unfair dismissal had any reasonable prospects of success, especially in light of the Respondent entering external administration and the subsequent procedural delays. The court had to consider whether the application was made in accordance with the Act, whether it was frivolous or vexatious, and whether it had reasonable prospects of success, particularly since the necessary court leave had not been sought. The court determined that the application had no reasonable prospects of success based on these considerations and the lack of response from Mr Vartazarian to the Commission's correspondence regarding the matter.

The Fair Work Commission found that the application was at risk of dismissal under section 587(1)(c) of the FW Act because it appeared that Mr Vartazarian did not intend to seek the leave of the Court, and he did not respond to the Commission's request for further information. The Commission concluded that the application had no reasonable prospects of success and ordered that it be dismissed.

No further orders were made by the Commission as the dismissal of the application was based on procedural grounds and the lack of intent to seek necessary court leave.

Emil Vartazarian v Cool Breeze Clothing Pty Ltd T/A Dimmeys

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established