Michael Gitsham v Cineplex Australia T/A Cineplex Partnerships Pty Ltd

[2018] FWC 1742

[2018] FWC 1742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Gitsham
v
Cineplex Australia T/A Cineplex Partnerships Pty Ltd
(U2018/276)

DEPUTY PRESIDENT DEAN SYDNEY, 6 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 8 January 2018, Mr Michael Gitsham made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Mr Gitsham’s application stated that he commenced employment with Cineplex Australia T/A Cineplex Partnerships Pty Ltd (the Respondent) on 30 March 2017 and that his dismissal took effect on 8 December 2017.

[3] The Respondent stated that Mr Gitsham was employed from 13 June 2017 to 8 December 2017 and objected to Mr Gitsham’s application on the basis that his employment had not met the minimum employment period.

[4] The application was allocated to me to determine whether Mr Gitsham’s employment had met the minimum employment period. Correspondence was sent to Mr Gitsham on 22 February 2018 which required him to file in the Fair Work Commission (the Commission) a statement and any supporting documentation to support his assertion that he had met the minimum employment period.

[5] On 5 March 2018, correspondence was sent to Mr Gitsham noting he had previously been directed to file a statement in the Commission but had not done so. Mr Gitsham was given until 4:00pm on Friday 9 March 2018 to respond and was advised in the absence of any material being received his application may be dismissed.

[6] A response was received by my chambers on 5 March as follows:

“I have been occupied and the matter will be forwarded by Wednesday morning.”

[7] On 20 March 2018 my associate telephoned Mr Gitsham as no material had been filed by him. He indicated that he was busy and would “send what I have if I get the time”.

[8] To date, Mr Gitsham has not provided any documentation to support his assertion that he had met the minimum employment period.

[9] Section 587(1) 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.

[10] 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).

[11] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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