Mr Kyle Smith v Gavriel Eshlav

[2022] FWC 1940

[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.

1. 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.

1. 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).

1. 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.
   
   

2. 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.
   
   

3. 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.

1. 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.

1. 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.

1. 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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