Mr Jack Sutherland v Royal Spraying Pty Ltd T/A Deep Bush Mechanical

[2019] FWC 1284

[2019] FWC 1284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Jack Sutherland
v
Royal Spraying Pty Ltd T/A Deep Bush Mechanical
(U2018/12969)

DEPUTY PRESIDENT BINET PERTH, 28 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 16 December 2018, Mr Jack Sutherland (Mr Sutherland) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Royal Spraying Pty Ltd trading as Deep Bush Mechanical (Deep Bush Mechanical).

[2] Mr Sutherland advised that his employment with Deep Bush Mechanical commenced on 31 January 2018 and that he was notified of his dismissal on 29 November 2018. Mr Sutherland was contacted by the FWC on 17 December 2018 and he affirmed in a telephone conversation that the dates of employment outlined in his Application were correct.

[3] On 25 January 2019, Deep Bush Mechanical filed a response to the Application confirming that Mr Sutherland commenced employment with Deep Bush Mechanical on 31 January 2018 and stating that he abandoned his employment on 14 November 2018. The response asserts that at the time of Mr Sutherland’s dismissal Deep Bush Mechanical employed only three employees.

[4] Deep Bush Mechanical’s response raised two jurisdictional objections to the Application. The first of these objections being that Mr Sutherland was not dismissed, and the second being that Mr Sutherland had not completed the minimum employment period.

[5] The minimum employment period if the employer is a small business employer is one year. 1 A business is a small business employer if it employed less than 15 employees immediately before the dismissal or at the time notice of dismissal was given, whichever occurred earlier.2

[6] On 23 January 2019, the parties participated in a telephone conciliation with a FWC staff conciliator but the parties were unable to resolve the issues in dispute.

[7] On 13 February 2019, the parties were issued with Directions which required Mr Sutherland to file and serve by 4pm on 20 February 2019 submissions and evidence to demonstrate that he had served the minimum employment period with Deep Bush Mechanical (Directions).

[8] On 22 February 2019, Chambers emailed the parties noting that Mr Sutherland had not filed the materials as required. Deep Bush Mechanical was invited to apply by 4pm on 25 February 2019, for the Application to be dismissed (Dismissal Application). Mr Sutherland was invited to make written submissions in response to the Dismissal Application by 4pm on 26 February 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[9] On 25 February 2019, Deep Bush Mechanical filed with Chambers and served on Mr Sutherland an application for the matter to be dismissed pursuant to sections 399A and 587 of the FW Act.

[10] Deep Bush Mechanical submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Sutherland unreasonably failed to comply with a direction of the FWC when he failed to file his materials in accordance with the Directions.

[11] Deep Bush Mechanical submitted that the Application should be dismissed pursuant to section 587 on the grounds that Mr Sutherland was ineligible to make an unfair dismissal claim because he had not served the minimum employment period and that therefore the Application was not made in accordance with the FW Act, was vexatious or frivolous and had not reasonable prospects of success.

[12] On the morning of Tuesday 26 February 2019 a further email, was sent to the parties reminding Mr Sutherland that he had until 4pm that day to file submissions as to why the Application should not be dismissed.

[13] Section 399A of the FW Act provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[14] Section 587(1) of the Act provides as follows:

“(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.”

[15] On his own evidence, Mr Sutherland has been employed for less than 12 months. Mr Sutherland has not contested, and there is no evidence before me to suggest, that Deep Bush Mechanical is not a small business employer for the purposes of the FW Act. I am therefore satisfied that the Application has no reasonable prospects of success.

[16] To date the FWC has not received any correspondence or written submissions from Mr Sutherland. I am therefore satisfied that Mr Sutherland has failed to comply with a direction of the FW Commission in relation to his Application.

[17] On the application of Deep Bush Mechanical and in the exercise of my discretion under sections 399A and 587 of the FW Act I have decided to dismiss the Application. An order to this effect [PR705353] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705351>

 1   Section 383 of the Fair Work Act 2009 (Cwth).

 2   Section 23 of the Fair Work Act 2009 (Cwth).