Isah Makki v Everbuilt Pty Ltd Summary

[2022] FWC 1035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Isah Makki
v

Everbuilt Pty Ltd

(U2022/1792)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

Isah Makki was employed by Everbuilt Pty Ltd from September 2019 until they were dismissed on the 18^th of January 2022.
On the 10^th of February 2022, Isah Makki (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Everbuilt Pty Ltd.
The application was lodged 2 days outside of the 21 day timeframe.

This matter did not reach conciliation and was allocated to my chambers accordingly.

The matter was referred to me to determine the jurisdictional objection. Correspondence was sent to Isah Makki on the 3rd of March 2022 requiring them to provide a statement in support of the granting of an extension of time for the late lodgement of their application. We asked them to provide the information by no later than 5:00pm on the 8th of March 2022. No response was received from Isah Makki.
On the 16th of March 2022, further correspondence was sent to Isah Makki directing them to provide a response by 5:00pm on the 18th of March 2022. They were advised that in the absence of a reply their application may be dismissed.
To date, Isah Makki has not responded to any of the Commission’s correspondence.

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.”

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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Isah Makki filed an application with the Fair Work Commission (FWC) for an unfair dismissal remedy against Everbuilt Pty Ltd. The applicant, employed from September 2019, was dismissed on 18 January 2022. The application, submitted two days beyond the 21-day statutory timeframe, was not conciliated and was subsequently allocated to the Vice President for determination of the jurisdictional objection. The Vice President sought a statement from the applicant in support of an extension of time for the late lodgement of the application but received no response. Further correspondence, with a deadline for a reply, also went unanswered. The Vice President dismissed the application for want of prosecution pursuant to s.587(3)(a) of the Act, finding that the applicant had not responded to any of the Commission’s correspondence.

The key legal issue in this case was whether the FWC had jurisdiction to dismiss the applicant's application for an unfair dismissal remedy due to the late lodgement and lack of response to correspondence. The Vice President considered the provisions of s.587 of the Fair Work Act 2009, which allows the FWC to 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 Vice President noted that 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). In light of the applicant's failure to respond to correspondence, the Vice President found that the application was properly dismissed for want of prosecution.

The Vice President concluded that the dismissal of the application was justified because the applicant failed to respond to correspondence from the Commission, which demonstrated a lack of diligence in pursuing the application. The Vice President found that the applicant's failure to respond to correspondence and provide a statement in support of the extension of time for the late lodgement of the application demonstrated a lack of commitment to the proceedings. As a result, the Vice President dismissed the application for want of prosecution under s.587(3)(a) of the Act. This decision highlights the importance of timely and diligent engagement with the FWC in unfair dismissal proceedings.

No further orders were made.

Isah Makki v Everbuilt Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established