Mr Kyle Smith v Gavriel Eshlav

[2022] FWC 1940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Kyle Smith
v

Gavriel Eshlav

(U2022/5998)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2022

Application for an unfair dismissal remedy.

Kyle Smith (the applicant) was employed by Gavriel Eshlav(the respondent) from the 3^rd of December 2021 through to the 3^rd of March 2022.

On the 3^rd of June 2022, 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. The respondent refused to partake in conciliation because of this objection.
On the 30^th of June 2022, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 7^th of July 2022. No response was received from the applicant at this time.
On the 8^th of July 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 12^th of July 2022. 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

In the Fair Work Commission, Mr Kyle Smith sought a remedy for unfair dismissal against Gavriel Eshlav. Smith alleged that he was dismissed without a fair reason on 3 March 2022, after being employed by Eshlav for a period of three months. Eshlav contested the application on the basis that Smith had not been employed for the requisite six months to be eligible to lodge an unfair dismissal claim under the Fair Work Act 2009. Eshlav also refused to engage in conciliation proceedings on this basis.

The primary legal issue for the Commission to determine was whether Smith’s application should be dismissed on the basis that he had not satisfied the six-month minimum employment period required to bring an unfair dismissal claim, or whether it should be dismissed for want of prosecution due to Smith’s failure to respond to correspondence from the Commission. The Commission found that the failure to respond to correspondence from the Commission was sufficient grounds to dismiss the application for want of prosecution.

The Commission noted that it had the power to dismiss an application under section 587(3) of the Act, both on its own initiative and on application, and that this was not limited to the circumstances specified in section 587(1). The Commission considered that Smith’s failure to respond to correspondence and jurisdictional objections from Eshlav, as well as further correspondence from the Commission, amounted to a lack of prosecution of the application. As such, the Commission dismissed the application for want of prosecution.

The Commission issued an order dismissing the application for want of prosecution.

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