Isaiah Barrett v Aboriginal Hostels Limited

[2023] FWC 2545

[2023] FWC 2545

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Isaiah Barrett
v

Aboriginal Hostels Limited

(U2023/6219)

COMMISSIONER LIM PERTH,16 OCTOBER 2023

Application for an unfair dismissal remedy

1. On 10 July 2023, Isaiah Barrett (the Applicant) applied to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of their alleged dismissal by Aboriginal Hostels Limited (the Respondent).

1. The Respondent has raised a jurisdictional objection on the basis that the Applicant was an employee of labour hire provider, Beyond Broome Hospitality Pty Limited (Beyond Broome), and was thus not an employee of the Respondent.

1. It is uncontroversial that to be protected from unfair dismissal pursuant to s 382, the Applicant must have been employed by the Respondent.

1. A mention was conducted on 28 September 2023. The Applicant confirmed that the entity on his payslips is Beyond Broome.

1. Based on this, I informed the parties at the mention that I had reached the preliminary view that the matter has no reasonable prospects of success (Preliminary View).

1. Subsequently, I issued directions for the parties to provide any material addressing their position on my Preliminary View and whether the matter should be dismissed pursuant to s 587 of the Act.

1. The Applicant did not file any materials in accordance with the directions. My Chambers sent correspondence to the Applicant advising that the Commission had not received any materials from him. The correspondence also informed the Applicant that in the absence of any material from him, I would proceed to determine whether to dismiss his application based on the material before me.

1. To date, the Applicant has not provided any further correspondence or materials to the Commission.

1. The Respondent provided submissions pressing their jurisdictional objection. The Respondent submits that:

• the Applicant was not their employee; he was an employee of a labour hire provider;

• the Applicant conceded the above point during the mention on 28 September;

• accordingly, it is appropriate to dismiss the application pursuant to s 587 of the Act as it has no reasonable prospects of success; and

• it would also be open and appropriate for the Commission to dismiss the application pursuant to s 399A(1)(b) of the Act as the Applicant failed to comply with the direction to provide materials addressing my Preliminary View.

1. Section 587 of the Act states 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.”

1. Section 587 does not limit the circumstances in which the Commission can consider dismissing an application. In this matter, I consider it appropriate to exercise my discretion to dismiss the application in accordance with s 587(1) of the Act. I do so as the Applicant confirmed that the entity on his payslips is Beyond Broome and has not provided any evidence to prove that the Respondent was his employer.

1. The application is therefore dismissed. An order will issue accordingly.

COMMISSIONER

Hearing on the papers

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