Jacob Mills v MGZ Floorcoverings Pty Ltd Summary

[2023] FWC 3309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacob Mills
v

MGZ Floorcoverings Pty Ltd

(U2023/9481)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 DECEMBER 2023

Application for an unfair dismissal remedy

Jacob Mills (the Applicant) was employed by MGZ Floorcoverings Pty Ltd (the Respondent) from February 2023 until he was dismissed on 13 September 2023.

On 3 October 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The Respondent raised a jurisdictional objection in the F3 – Employer’s Response Form stating that the Applicant had not met the minimum employment period.

On 22 November 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 30 November 2023. No response was received at this time.

Further correspondence was sent to the Applicant on 4 December 2023 and he was required to respond by 5:00pm on 8 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

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, “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

In the case of Jacob Mills v MGZ Floorcoverings Pty Ltd, the applicant, Jacob Mills, sought a remedy for unfair dismissal from his employer, MGZ Floorcoverings Pty Ltd, under section 394 of the Fair Work Act 2009. Mills was employed by the respondent company from February 2023 until his dismissal on 13 September 2023. The respondent contested the application by raising a jurisdictional objection, asserting that Mills did not meet the minimum employment period requirement. Following this, Mills was given multiple opportunities to respond to correspondence from the Commission regarding the jurisdictional issue, but he failed to respond to any of the notices. The Commission was tasked with determining whether the application should be dismissed due to the jurisdictional issue and Mills' failure to respond to the notices sent by the Commission.

The primary legal issue before the Commission was whether the application for unfair dismissal could proceed, given the jurisdictional objection raised by the respondent and Mills' failure to respond to correspondence from the Commission. The respondent argued that the application should be dismissed on the grounds that Mills did not meet the minimum employment period requirement. The Commission also had to consider whether Mills' failure to respond to correspondence warranted the dismissal of the application under section 587(3)(a) of the Act.

In its decision, the Commission found that the application should be dismissed for want of prosecution. The Commission noted that the words, “Without limiting when the FWC may dismiss an application” at the commencement of section 587(1) of the Act, established that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in section 587(1)(a), (b) and (c). Given that Mills failed to respond to correspondence from the Commission, it was deemed appropriate to dismiss the application under section 587(3)(a) of the Act. Therefore, the application for an unfair dismissal remedy was dismissed.

The Commission issued an order dismissing the application for want of prosecution. This decision highlights the importance of meeting jurisdictional requirements and responding to correspondence from the Commission in a timely manner. Failure to do so may result in the dismissal of the application, regardless of the merits of the case.

Jacob Mills v MGZ Floorcoverings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established