Sally Tuiala v Bartels Lawyers

[2019] FWC 4466

[2019] FWC 4466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sally Tuiala
v
Bartels Lawyers
(U2019/3758)

VICE PRESIDENT CATANZARITI SYDNEY, 27 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 3 April 2019, Sally Tuiala made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On 4 April 2019, Ms Tuiala filed an amended unfair dismissal application.

[2] Ms Tuiala advised in her amended application that she was employed by Bartels Lawyers from 6 June 2016 until she was dismissed on 13 March 2019.

[3] On 10 May 2019, Bartels Lawyers filed an Employers Response (form F3). Bartels Lawyers submitted that Ms Tuiala commenced her employment on 6 June 2016 and resigned from her position with the firm on 12 March 2019. Bartels Lawyers raised several jurisdictional objections to the application: Ms Tuiala was not dismissed, Bartels Lawyers is a small business employer and had complied with the Small Business Fair Dismissal Code and Bartels Lawyers is a registered sole trader and is therefore not a constitutional corporation for the purposes of the Act and is not a National System Employer.

[4] The matter was referred to me to determine the jurisdictional objection that Bartels Lawyers is not a constitutional corporation for the purposes of the Act. Correspondence was sent to Ms Tuiala on 4 June 2019 requiring her to provide a statement if she considered that she was employed by a National System Employer and the Fair Work Commission has jurisdiction to hear her application. She was asked to provide the information by no later than 11 June 2019. No response was received from Ms Tuiala.

[5] On 13 June 2019, further correspondence was sent to Ms Tuiala directing her to provide a response by 4.00pm on 20 June 2019. She was advised that in the absence of a reply her application would be dismissed.

[6] To date, Ms Tuiala has not responded to any of the Commission’s correspondence.

[7] 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.

[8] 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).

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

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

VICE PRESIDENT

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