Solomona Faataape v Dongyangyang Liu T/A Fitstop Slacks Creek

[2023] FWC 344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Solomona Faataape
v

Dongyangyang Liu T/A Fitstop Slacks Creek

(U2022/11098)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 FEBRUARY 2023

Application for an unfair dismissal remedy.

Solomona Faataape (the applicant) was employed by Dongyangyang Liu T/A Fitstop Slacks Creek (the respondent) from the 19^th of September 2022 through to the 29^th of October 2022.

On the 19^th of November 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.
On the 18^th of January 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 25^th of January 2023. No response was received from the applicant at this time.
On the 30^th of January 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 2^nd of February 2023. 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

The applicant, Solomona Faataape, applied for a remedy for unfair dismissal against the respondent, Dongyangyang Liu, trading as Fitstop Slacks Creek, under the Fair Work Act 2009. Faataape was employed by Liu for a short period, from September 19 to October 29, 2022, and made an application for unfair dismissal on November 19, 2022. Liu contested the application on the basis that Faataape had not fulfilled the minimum employment period required to file such an application under section 394 of the Fair Work Act 2009. Correspondence was sent to Faataape on January 18, 2023, requesting a response to the objections by January 25, 2023. Faataape did not respond, and further correspondence on January 30, 2023, requested a reply by February 2, 2023, at 5:00 pm, warning that the application may be dismissed in the absence of a reply. Faataape did not respond to either the objections or the subsequent correspondence.

The legal issues before the court were whether the application met the jurisdictional requirements under the Fair Work Act 2009 and whether the application had reasonable prospects of success. The respondent argued that the applicant had not met the minimum employment period to file an unfair dismissal claim, and the applicant failed to respond to jurisdictional objections and subsequent correspondence. The court considered section 587 of the Act, which allows the Fair Work Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court also noted that the Commission's jurisdiction to dismiss an application is not limited to the circumstances set out in section 587(1)(a), (b), and (c) of the Act.

Given that the applicant did not respond to the jurisdictional objections or subsequent correspondence, the court decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act. The court held that the application did not meet the jurisdictional requirements, and the applicant's failure to respond to correspondence indicated that the application had no reasonable prospects of success. The court concluded that dismissing the application was appropriate in the circumstances. An order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established