Toru Fujimori v Kobe Jones Sydney Pty Ltd

[2019] FWC 5086

[2019] FWC 5086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Toru Fujimori
v
Kobe Jones Sydney Pty Ltd
(U2019/5511)

VICE PRESIDENT CATANZARITI SYDNEY, 22 JULY 2019

Application for an unfair dismissal remedy.

[1] Toru Fujimori was employed by Kobe Jones Sydney Pty Ltd (the Respondent) until he was dismissed on 8 May 2019.

[2] On 17 May 2019, Mr Fujimori made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 5 June 2019, the Respondent’s external administrator, Crouch Amirbeaggi, advised the Fair Work Commission (Commission) that the Respondent was likely to be liquidated shortly, and that it (the administrator) would not participate in the standard conciliation process before a Commission staff conciliator.

[4] The matter was then referred to me. My chambers sent Mr Fujimori correspondence on 13 June 2019, providing him with the administrator’s correspondence to the Commission and informing him of s.500(2) of the Corporations Act 2001, which states:

“(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

[5] On 26 June 2019, my chambers sent further correspondence to Mr Fujimori, directing him to provide a response by 4:00 pm on 1 July 2019. He was advised that in the absence of a reply, his application may be dismissed. My chambers then sent another email to Mr Fujimori on 12 July 2019, advising that his application would be dismissed if he did not respond by 4:00 pm on 19 July 2019.

[6] To date, Mr Fujimori 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.

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.”

[8] 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).

[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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