Erika Marquez Acevedo v Mohammed Nisreen Majeed T/A New Multimedia Interactive

[2020] FWC 6625

[2020] FWC 6625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Erika Marquez Acevedo
v
MOHAMMED NISREEN MAJEED T/A New Multimedia Interactive
(C2020/6587)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 DECEMBER 2020

Application to deal with contraventions involving dismissal.

Introduction and background

[1] On the 26 August 2020, Ms Erika Marquez Acevedo (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 5 August 2020 by New Multimedia Interactive (the Respondent) contravened her workplace rights.

[2] Directions and a notice of listing was issued to the parties on the 2 November 2020, and the matter was subsequently allocated to my chambers on 16 November 2020. The matter was listed for a conference on the 7 December 2020 to deal with a jurisdictional objection raised by the Respondent that the Applicant had not been an employee of the Respondent. The directions required the Applicant to file her submissions, witness statements and other documentary material on which she intended to rely by no later than 4:00pm, 9 November 2020. No material was filed by the Applicant.

[3] During the conference on 7 December 2020, the Applicant did not participate despite numerous attempts by my associate to contact her by telephone. The Respondent was represented by Mr G Doran of Nevett Ford Lawyers, and Mr N Majeed of the Respondent who was also in attendance over the telephone.

[4] Following conclusion of the Conference on 7 December 2020, my chambers emailed the Applicant advising her that she had failed to comply with the directions in relation to the filing of material and attendance at the hearing. The Applicant was given until the close of business on Tuesday 8 December 2020 to provide submissions as to why the directions had not been complied, noting the Applicant was at risk of non-compliance and dismissal of her application. No response was received from the Applicant.

Consideration

[5] The Applicant claimed in her Form F8 that she commenced employment with the Respondent on 1 August 2019 and was dismissed on 5 August 2020. The only material that accompanied the application was a handwritten note, apparently written by the Applicant, which appeared to indicate a personal relationship that had existed between the Applicant and Mr Majeed. Mr Majeed in the Respondent’s Form F8A confirmed that a personal relationship had formed between the Applicant and himself, but which had since broken down. He rejected that there had been any employment relationship between himself and the Applicant. No other material was filed that supported the Applicant’s claims of an employment relationship having existed. I am satisfied on the limited material before me that the Applicant was not an employee of the Respondent.

[6] Turning now to whether the application should be dismissed the relevant section of the 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.

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, “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).

[8] 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.

DEPUTY PRESIDENT

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