Fadie Elias Nahas v MN Services Pty Ltd

[2019] FWC 7801

[2019] FWC 7801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fadie Elias Nahas
v
MN Services Pty Ltd
(U2019/10189)

VICE PRESIDENT CATANZARITI SYDNEY, 15 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 11 September 2019, Mr Fadie Nahas applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 19 September 2019, MN Services Pty Ltd (the Respondent) objected to Mr Nahas’ application on the grounds that:

•  he earned more than the high income threshold, which was $148,700 at the relevant time; and

•  his application was lodged more than 21 days after his dismissal took effect.

[3] The Respondent alleged that Mr Nahas’ income was $680,576 per annum at the time of dismissal, and that his dismissal took effect on 8 August 2019.

[4] On 31 October 2019, my chambers sent correspondence to Mr Nahas, directing him to respond to the Respondent’s jurisdictional objections by 4:00 pm on 7 November 2019.

[5] On 8 November 2019, my chambers sent further correspondence to Mr Nahas, noting that he had not responded as directed, giving him until 4:00 pm on 13 November 2019 to respond, and advising that if he did not respond, his application may be dismissed.

[6] To date, Mr Nahas has not responded to the Commission.

[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.

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.”

[8] The words, “[w]ithout 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 this 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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