Isam Lumani v Miele Australia Pty. Limited

[2024] FWC 2455

[2024] FWC 2455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Isam Lumani
v

Miele Australia Pty. Limited

(U2024/9090)

DEPUTY PRESIDENT MASSON MELBOURNE, 10 SEPTEMBER 2024

Application for an unfair dismissal remedy

1. On 5 August 2024, Mr Isam Lumani (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Miele Australia Pty. Limited (Miele) (the Respondent) was unfair.

1. On 22 August 2024 the Respondent filed its Form F3 Response with the Commission. In its response the Respondent raised the jurisdictional objection that the Applicant was not an employee.

1. The matter was allocated to my Chambers on 30 August 2024 for determination. Following allocation of the matter, directions were sent to the parties on 2 September 2024 for the filing of materials in relation to the jurisdictional objection. The directions also advised that the matter would be listed for mention on 5 September 2024 and for hearing on 26 September 2024.

1. On 3 September 2024, the Respondent emailed my Chambers and provided a copy of the Applicant’s contract of employment. The contract specifies the employer as being Logical Staffing Solutions Group Pty Ltd and the client is identified as Miele.

1. The Applicant did not join the mention on 5 September 2024. My Associate attempted to contact the Applicant on the afternoon of the mention on the phone number listed on the Form F2. A voice message was left by my Associate advising the Applicant of the mention and that he should join the Teams link or alternatively call Chambers as soon as possible. The Applicant did not join the Teams meeting or return the call made by my Associate.

1. The mention on 5 September 2024, proceeded in the Applicants absence. The Respondent was represented by Ms Rachael Leshinsky, HR Director ANZ. At the mention the Respondent confirmed that it was not the employer of the Applicant per the contract of employment filed. I foreshadowed that I was considering dismissing the application pursuant to s. 587(1)(c) of the Act on the basis that as the Miele was not the Applicant’s employer his application has no reasonable prospects of success. The Respondent did not raise any objections to this course of action.

1. Following the mention on 5 September 2024, correspondence was sent to the Applicant by my Chambers advising that as his contract disclosed that he was not an employee of Miele, I was proposing to dismiss his application pursuant to s. 587(1)(c) of the Act on the basis that that the application has no reasonable prospects of success. Should he object to the proposed course of action, he was invited to file submissions by the close of business 9 September 2024 as to why his application should not be dismissed. He was also advised in that correspondence that if he wished to be heard in relation to the potential dismissal of his application, he was required to notify my Chambers. No response was received from the Applicant.  

1. Turning now to whether the application should be dismissed the relevant section of the Act provides 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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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. As I have found above, the Applicant’s contract of employment indicates that he was not an employee of Miele and was instead an employee of Logical Staffing Solutions Group Pty Ltd. In these circumstances, I have determined to exercise my discretion pursuant to ss 587(1)(c) of the Act to dismiss the application on the basis that there are no reasonable prospects of success. In doing so I have acted on my own initiative as I am permitted to under s 587(3) of the Act.

Conclusion

1. For the reasons outlined above, I am satisfied that the application has no reasonable prospects of success as Miele was not the Applicant’s employer. In the circumstances, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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