Eraj Saraj v Farhad Ghanbarzadeh T/A Delta Bricklaying Summary

[2023] FWC 617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Eraj Saraj
v

Farhad Ghanbarzadeh T/A Delta Bricklaying

(U2023/32)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 MARCH 2023

Application for an unfair dismissal remedy.

Eraj Saraj (the applicant) was employed by Farhad Ghanbarzadeh T/A Delta Bricklaying (the respondent) from the 4^th of May 2022 through to the 12^th of December 2022.

On the 2^nd of January 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The respondent objected to the application on the basis that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Fair Work Act 2009.
The respondent has also objected to the application on the grounds that they believe the applicant was not an employee for the named respondent.
On the 27^th of February 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 6^th of March 2023. No response was received from the applicant at this time.
On the 7^th of March 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 10^th of March 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Eraj Saraj brought an application against Farhad Ghanbarzadeh T/A Delta Bricklaying in the Fair Work Commission (FWC) for an unfair dismissal remedy. The applicant was employed by the respondent from May 4, 2022, until December 12, 2022. On January 2, 2023, the applicant lodged an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). The respondent objected to the application on the grounds that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Act, and that the applicant was not an employee of the respondent. The respondent also requested the applicant to respond to the jurisdictional objections within a specified period. The applicant failed to respond to the jurisdictional objections and further correspondence from the FWC.

The legal issue before the FWC was whether the application should be dismissed for want of prosecution under section 587 of the Act. The FWC noted that section 587(1) of the Act provides that the FWC may dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The FWC also noted that section 587(2) of the Act provides that the FWC must not dismiss an application on the ground that it is frivolous or vexatious or has no reasonable prospects of success if it is an application under section 365 or 773 of the Act. The FWC further noted that section 587(3) of the Act provides that the FWC may dismiss an application on its own initiative or on application.

The FWC considered that the application did not comply with the Act, as the applicant failed to respond to the jurisdictional objections and further correspondence from the FWC. The FWC also considered that the application was not frivolous or vexatious, as the applicant had made a genuine attempt to seek a remedy for unfair dismissal. However, the FWC considered that the application had no reasonable prospects of success, as the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Act, and there was a dispute as to whether the applicant was an employee of the respondent. The FWC concluded that the application should be dismissed for want of prosecution under section 587(3)(a) of the Act.

The FWC dismissed the application for want of prosecution under section 587(3)(a) of the Act. An order to that effect will issue with this decision.

Eraj Saraj v Farhad Ghanbarzadeh T/A Delta Bricklaying

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established