Fatemeh Nasdjini v Nguyen Toan Lam

[2023] FWC 2354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Fatemeh Nasdjini
v

NGUYEN TOAN LAM

(U2023/7258)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Fatemeh Nasdjini (the applicant) was employed by Nguyen Toan Lam (the respondent) from the 4^th of February 2022 until she resigned on the 7^th of July 2023.

On the 7^th of August 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 raised an objection to the application, claiming that they were not a National Systematic Employer.
On the 30^th of August 2023, correspondence was sent to the applicant in relation to the jurisdictional objection and she was required to respond by the 6^th of September 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 7^th of September 2023 and she was required to respond by 5:00pm the 12^th of September 2023. It was in this correspondence that the applicant was advised her application would be dismissed without any notice if no response was received.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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

The applicant, Fatemeh Nasdjini, filed an unfair dismissal application against Nguyen Toan Lam under section 394 of the Fair Work Act 2009, following her resignation from employment on 7 July 2023. Lam objected to the application, asserting that he was not a national systemic employer, thus challenging the jurisdiction of the Fair Work Commission (FWC). The applicant did not respond to multiple notices to respond to the jurisdictional objection, leading to the Commission considering the application for dismissal.

The primary legal issue was whether the FWC had the authority to dismiss the application for want of prosecution under section 587 of the Act. The analysis focused on the broad jurisdictional power granted to the FWC by section 587(1) of the Act, which allows dismissal without limitation to the specific circumstances listed in subsections (1)(a), (b) and (c). The absence of a response from the applicant to the notices to respond to the jurisdictional objection was considered a significant factor in the decision.

The Vice President of the FWC, Catanzariti, exercised the discretion to dismiss the application under section 587(3)(a) of the Act. The decision hinged on the lack of response from the applicant to multiple notices, indicating the application had no reasonable prospects of success. The reasoning underscored the importance of procedural compliance and the consequences of failing to respond to notices from the Commission.

An order dismissing the application for want of prosecution was issued, reflecting the Vice President's decision.

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