Patrick Neilson v Bay Timber Manufacturing Pty Ltd

[2024] FWC 773

[2024] FWC 773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patrick Neilson
v

Bay Timber Manufacturing Pty Ltd

(U2024/605)

DEPUTY PRESIDENT EASTON SYDNEY, 27 MARCH 2024

Application for an unfair dismissal remedy

1. Patrick Neilson was employed by Bay Timber Manufacturing Pty Ltd until he was dismissed on 19 January 2024. In the filed documents the parties do not agree on when Mr Neilson commenced employment. Mr Nielson submitted that he commenced employment in mid-2020, Bay Timber submitted that Mr Nielson commenced employment on 23 October 2023.

1. On 18 January 2024, Mr Nielson filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. Based on their submitted commencement date, Bay Timber raised the jurisdictional objection that Mr Nielson did not complete the minimum employment period. Sections 382 and 383 of the Act require an Applicant to be ‘an employee who has completed a period of employment with his or her employer of at least the minimum employment period’. The minimum employment period is 6 months if the former employer does not identify as a small business. A small business is when the employer has fewer than 15 employees. In the case that an employer is a small business, the minimum employment period is 12 months.

1. On 29 February 2024, correspondence was sent to Mr Nielson in relation to the minimum employment period issue and he was required to respond by 7 March 2024. No response was received at this time.

1. Further correspondence was sent to Mr Nielson on 8 March 2024, and he was required to respond by 5:00pm on 13 March 2024. It was in this correspondence that Mr Nielson was advised the application may be dismissed without any notice if no response was received.

1. On 14 March 2024 the Commission attempted to contact Mr Nielson via telephone. However, Mr Nielson could not be reached. A voicemail message was left advising Mr Nielson to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission the application would be dismissed without further notice.
   
   

2. To date, Mr Nielson has not responded to any of the Commission’s attempts to contact him.

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or
 (b) has no reasonable prospects of success.

(3) The 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 Mr Nielson’s application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR772737).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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