Holley Baysari v I.C.M Property Services Summary

[2022] FWC 1939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Holley Baysari
v

I.C.M Property Services

(U2022/4342)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2022

Application for an unfair dismissal remedy.

Holley Baysari (the applicant) was employed by I.C.M Property Services (the respondent) from the 28^th of February 2022 through to the 4^th of April 2022.

On the 13^th of April 2022, 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 refused to partake in conciliation because of this objection.
On the 30^th of June 2022, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and she was required to respond by the 7^th of July 2022. No response was received from the applicant at this time.
On the 8^th of July 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 12^th of July 2022. She was advised that in the absence of a reply, her 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

The applicant, Holley Baysari, sought a remedy for unfair dismissal against the respondent, I.C.M Property Services, under section 394 of the Fair Work Act 2009. The respondent raised objections on the basis that the applicant had not met the minimum employment period required to lodge an application for unfair dismissal. The respondent further objected to conciliation on the same grounds. The applicant did not respond to the jurisdictional objections and further correspondence from the Commission, leading to the application being dismissed for want of prosecution.

The central legal issue was whether the application met the jurisdictional requirements of section 394 of the Fair Work Act 2009, specifically the minimum employment period. Given the respondent’s objections and the applicant’s failure to respond to correspondence from the Commission, the court had to determine if the application could proceed and if the lack of response justified dismissal. Section 587 of the Act provides the framework for when an application may be dismissed, including for want of prosecution. The court considered whether the application could be dismissed under these provisions.

The court found that the applicant's failure to respond to jurisdictional objections and subsequent correspondence from the Commission demonstrated a lack of prosecution. This non-compliance justified dismissal of the application pursuant to section 587(3)(a) of the Act. The court noted that the jurisdiction to dismiss an application was not limited to the specific circumstances outlined in section 587(1)(a), (b), and (c). Therefore, the court dismissed the application for want of prosecution.

An order was issued dismissing the application for unfair dismissal for want of prosecution. This order will be reflected in the formal decision issued by the Commission.

Holley Baysari v I.C.M Property Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established