Jackson James v The Trustee for Quigley Farming Trust

[2024] FWC 1728

[2024] FWC 1728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jackson James
v

The Trustee For Quigley Farming Trust

(U2024/4927)

DEPUTY PRESIDENT EASTON SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

1. Mr Jackson James was employed by The Trustee For Quigley Farming Trust until he was dismissed. On 1 May 2024, Mr James made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. A conciliation conference was scheduled on 5 June 2024 however Mr James did not attend.

1. Quigley Farming raised the jurisdictional objection that Mr James did not complete the minimum employment period as they were a small business at the time of Mr James’ dismissal.

1. A person can only make an unfair dismissal application if they completed the minimum period of employment before they were dismissed – per s.382 and s.383 of the Act. For employees of small business employers (see s.23 of the Act) the minimum employment period is 12 months. For other employees the minimum employment period is 6 months. Section 383 of the Act defines the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

1. Mr James advised in the Form F2 Unfair Dismissal Application that he commenced employment with Quigley Farming on 15 May 2023 and that his dismissal took effect on 30 April 2024. On the information provided by Mr James, he worked for Quigley Farming for 11 months and 2 weeks.

1. On 17 June 2024 my Chambers emailed Mr James regarding the Respondent’s jurisdictional objection that he had not served the minimum employment period and his non attendance at conciliation. Mr James was required to respond by 24 June 2024. An SMS was also sent to Mr James telling him that an important email had been sent. Mr James did not respond to this email.

1. On 25 June 2024, my Chambers emailed Mr James and he was required to respond by 5:00pm on 28 June 2024. Mr James was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr James telling him that an important email had been sent. Mr James did not respond to this email.

1. To date Mr James has not replied to any of the Commission’s correspondence.

1. 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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr James’ application.

1. Mr James has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

1. For these reasons I have decided to dismiss Mr James’ application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR776600).

DEPUTY PRESIDENT

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