Tengku Radziah Binti T Mohd Nor v Ironing Express Pty Ltd T/A Speedie Ironing Express

[2019] FWC 8096

[2019] FWC 8096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tengku Radziah Binti T Mohd Nor
v
Ironing Express Pty Ltd T/A Speedie Ironing Express
(U2019/11048)

VICE PRESIDENT CATANZARITI MELBOURNE, 28 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Tengku Radziah Binti T Mohd Nor states she was employed by Ironing Express Pty Ltd T/A Speedie Ironing Express from 11 March 2019 until her dismissal took effect on 13 September 2019. On 1 October 2019, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 30 October 2019, Speedie Ironing Express Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), objecting to Ms T Mohd Nor’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent agreed that Ms T Mohd Nor started working for it on 11 March 2019, but stated that she voluntarily resigned and ‘did not return to work on Monday 16/09/2019’. The Respondent also said it was a small business employer.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Ms T Mohd Nor on 8 November 2019, advising that the minimum employment period for an employee of a small business employer is 12 months, and requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 15 November 2019. However, we received no response from Ms T Mohd Nor by that time.

[4] On 18 November 2019, my chambers sent further correspondence to Ms T Mohd Nor, directing her to provide a response by 4:00 pm on 21 November 2019. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, Ms T Mohd Nor has not responded to any of the Commission’s correspondence.

[6] 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 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.”

[7] The words, “[w]ithout 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).

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

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

VICE PRESIDENT

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