Tyler White v Catalina Farms
[2025] FWC 247
•28 JANUARY 2025
| [2025] FWC 247 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tyler White
v
Catalina Farms
(U2024/14028)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 28 JANUARY 2025 |
Applicant failed to respond to correspondence – application has no reasonable prospects of success - application dismissed pursuant to s.587 of the Act.
On 23 November 2024 Mr Tyler White (the Applicant) applied to the Fair Work Commission (FWC) under s.394 of the Fair Work Act (the Act) seeking a remedy for alleged unfair dismissal. The matter was allocated to my Chambers on 9 January 2025. On perusing the material lodged by the parties, I noted that the parties both agreed that Catalina Farms (the Respondent) was a small business as defined in the Act. Consistent with this, the Respondent was claiming compliance with the Small Business Fair Dismissal code as a jurisdictional objection to the claim.
On further examination, it became clear that the parties also agreed that the Applicant commenced employment in March 2024 and was terminated in November 2024. As such, the Applicant did not appear to meet the minimum employment period of twelve months given the Respondent is a small business. Given this, I caused my Chambers to write to the Applicant as follows on 10 January 2025:
“Dear Mr White,
Your application number U2024/14028 has been allocated to Deputy President O'Keeffe. The Deputy President has examined the application and the paperwork provided by Catalina Farms. From the documentation it appears that both you and Catalina Farms agree as follows:
Catalina Farms is a small business as defined in the Fair Work Act, having less than 15 employees.
2. You commenced work in March 2024 and were terminated in November 2024.
Section 382 of the Fair Work Act states that to be protected against unfair dismissal an employee must have - amongst other things - completed the minimum period of employment. Section 383 of the Act defines minimum period of employment in the case of an employee of a small business as being one year.
It seems clear from the material provided by yourself and Catalina Farms that your employment lasted approximately eight months. Given this, it appears that you have
not met the minimum employment period required by the Act and thus you are not protected from unfair dismissal. In such circumstances, your application would not seem to have any reasonable prospects of success.
If you intend to continue with your application, you will need to provide - in writing - your arguments as to why you are protected from unfair dismissal. You may wish to consult the FWC website's information regarding the minimum period of employment which can be found here: What is the minimum period of employment? ' Fair Work Commission. In any case, your written arguments should be received by no later than 4.00pm (AWST) Tuesday 14th January 2025.
You should be aware that s.587 of the Act empowers the Commission to dismiss applications on a number of grounds, including that they have no reasonable prospects of success. If you fail to provide written reasons as to why your application should continue, you should be aware that the Deputy President may dismiss your application with no further opportunity for you to make comment.”
No response was received from the Applicant by the appointed time and date. Given this, I caused my Chambers to again write to the Applicant as follows:
“Dear Mr White,
As stated in the below correspondence sent by Chambers you were asked to provide a response by 4.00pm (AWST) Tuesday 14th January 2025.
Deputy President O'Keeffe requests as a matter of urgency that you provide a response by no later than 4:00pm (AWST) Tuesday 21 January 2025.
You should be aware that s.587 of the Act empowers the Commission to dismiss applications on a number of grounds, including that they have no reasonable prospects of success. If you fail to provide written reasons as to why your application should continue, you should be aware that the Deputy President may dismiss your application with no further opportunity for you to make comment.t”
As at 11.00am (AWST) on 24 January 2025 no response had been received from the Applicant.
Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]). In this instance, the Applicant has failed to respond to correspondence from the FWC that required him to establish grounds for his being protected from unfair dismissal if he wished to proceed with his claim. In essence, he has failed to prosecute his claim. In addition, s.587(1)(c) allows the FWC to dismiss an application which has no reasonable prospects of success.
In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has failed to respond to correspondence and, based on the length of his service – which is not disputed between the parties – he is not a person protected from unfair dismissal. His application thus has no reasonable prospects of success. An order dismissing the application will issue.
DEPUTY PRESIDENT
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