Maxwell Fesolai v YLO (Residential Care Services) Pty Ltd

[2023] FWC 1632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maxwell Fesolai
v

YLO (Residential Care Services) Pty Ltd

(U2023/4030)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JULY 2023

Application for an unfair dismissal remedy.

Maxwell Fesolai (the applicant) was employed by YLO (Residential Care Services) Pty Ltd (the respondent) from the 9^th of September 2022 through to the 8^th of May 2023.

On the 10^th of May 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 16^th of June 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 23^rd of June 2023. No response was received from the applicant at this time.
On the 26^th of June 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 29^th of June 2023. He was advised that in the absence of a reply, his 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

Maxwell Fesolai filed an application for unfair dismissal against YLO (Residential Care Services) Pty Ltd before the Fair Work Commission, claiming that his dismissal was unjust. The respondent contested the application, asserting that the applicant did not satisfy the minimum employment period requirement to lodge an application under section 394 of the Fair Work Act 2009. The applicant was notified of the jurisdictional objections raised by the respondent and was required to respond by a specific date, which he failed to do. Further correspondence was sent to the applicant, urging him to provide a response by a later date. However, the applicant did not respond to either the jurisdictional objections or the subsequent correspondence.

The legal issues that the court had to address included whether the applicant had met the minimum employment period requirement for lodging an unfair dismissal application and whether the application should be dismissed for want of prosecution due to the applicant's failure to respond to the jurisdictional objections and subsequent correspondence. The court considered section 587 of the Fair Work Act 2009, which grants the Fair Work Commission the authority to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court also noted that 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).

The Fair Work Commission dismissed the application for want of prosecution, pursuant to s.587(3)(a) of the Act, as the applicant had not responded to the jurisdictional objections raised by the respondent or the subsequent correspondence. The court concluded that the applicant had not met the minimum employment period requirement and that the application had no reasonable prospects of success due to the applicant's failure to respond to the jurisdictional objections and subsequent correspondence. The court issued an order dismissing the application.

In conclusion, the Fair Work Commission dismissed Maxwell Fesolai's unfair dismissal application against YLO (Residential Care Services) Pty Ltd for want of prosecution. The court found that the applicant had not met the minimum employment period requirement and that the application had no reasonable prospects of success due to the applicant's failure to respond to the jurisdictional objections and subsequent correspondence. The decision was based on the provisions of the Fair Work Act 2009, which grant the Fair Work Commission the authority to dismiss an application under certain circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established