Malachi Inivale v The Trustee for Jk Smiles Unit Trust

[2023] FWC 3328

[2023] FWC 3328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Malachi Inivale
v

The Trustee For Jk Smiles Unit Trust

(U2023/10568)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 DECEMBER 2023

Application for relief from unfair dismissal – minimum employment period – dismissal under s.587 at the Commission’s initiative.

1. On 26 October 2023, Malachi Inivale (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The Applicant advised in his Form F2–Unfair Dismissal Application (Form F2) that he commenced employment with The Trustee For Jk Smiles Unit Trust (the Respondent) on 15 February 2023, and that he was not notified about being dismissed and that he did not know the exact date on which his dismissal took effect.

1. On 31 October 2023, the Commission attempted to contact the Applicant on his nominated telephone number. The Applicant did not answer the call. A voicemail message was left requesting that the Applicant contact the Commission.

1. On 1 November 2023, the Commission called the Applicant’s nominated representative, who advised the Commission that he had not heard from the Applicant. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address requesting that he provide further details as his application was incomplete. That correspondence also advised that if the effective date of dismissal was not provided within 14 days, the application may be dismissed. On 13 November 2023, as the required information was not received, the Commission attempted to contact the Applicant on his nominated telephone number.  A voicemail message was left requesting that the Applicant contact the Commission. To date the Applicant has not replied to the Commission’s correspondence.

1. Section 587(1) of the FW 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 prospect of success.

1. In considering all the circumstances, I am satisfied that as the application form in question was incomplete and it has not been made in accordance with the Act. Given the absence of a completed Form F2, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the attempts by the Commission to contact the Applicant, the reminders and multiple requests, the Applicant has not responded.  In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. The application is dismissed. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR769366.

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<PR769365>