Kimberly Reimer v Tonimay Pty Ltd Summary

[2023] FWC 1709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kimberly Reimer
v

Tonimay Pty Ltd

(U2023/4908)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 JULY 2023

Application for an unfair dismissal remedy.

Kimberly Reimer (the applicant) was employed by Tonimay Pty Ltd (the respondent) from the 7^th of June 2022 through to the 29^th of May 2023.

On the 4^th of June 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 objected to the application on the basis that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Fair Work Act 2009.
On the 30^th of June 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and she was required to respond by the 7^th of July 2023. No response was received from the applicant at this time.
On the 10^th of July 2023, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 12^th of July 2023. She was advised that in the absence of a reply, her application may be dismissed.

To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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.

(2) Despite paragraphs (1)(b) and (c), 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) 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

The applicant, Kimberly Reimer, sought a remedy for unfair dismissal against Tonimay Pty Ltd (the respondent) under section 394 of the Fair Work Act 2009. The dispute arose from Reimer's employment, which lasted from 7 June 2022 to 29 May 2023. The respondent contested the application on the grounds that Reimer did not meet the minimum employment period required to lodge such an application. This led to jurisdictional objections that Reimer did not respond to despite multiple requests.

The central legal issue in this case was whether the applicant had met the minimum employment period to be eligible for an unfair dismissal remedy under section 394 of the Fair Work Act 2009. Additionally, the court had to determine whether the applicant's failure to respond to jurisdictional objections and subsequent correspondence warranted the dismissal of her application under section 587 of the Act. The respondent argued that the applicant's lack of response justified the dismissal of her application for being frivolous or vexatious, or for having no reasonable prospects of success.

The Vice President, Catanzariti, found that the applicant's failure to respond to jurisdictional objections and follow-up correspondence indicated that her application had no reasonable prospects of success. Section 587(1) of the Act grants the Fair Work Commission the authority to dismiss an application for various reasons, including if it has no reasonable prospects of success. The Vice President exercised this authority and decided to dismiss the application for want of prosecution. This decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative.

An order dismissing the application will issue with this decision. This outcome underscores the importance of timely and adequate responses to jurisdictional objections and correspondence from the Commission, as failure to do so may result in the dismissal of an application.

Kimberly Reimer v Tonimay Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established