Caitlin Amelia Latham v Karen Zhang T/A Goonellabah Dental Practice

[2022] FWC 1938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Caitlin Amelia Latham
v

Karen Zhang T/A Goonellabah Dental Practice

(U2022/4970)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2022

Application for an unfair dismissal remedy.

Caitlin Amelia Latham (the applicant) was employed by Karen Zhang (the respondent) from January 2021 until she was dismissed on the 28^th of April 2022.

On the 2^nd of May 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Karen Zhang Investments Pty Ltd as trustee for Karen Zhang Family Trust.
On the 30^th of June 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 7^th of July 2022. No response was received at this time.
On the 8^th of July 2022, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 12^th of July 2022. She was advised that in the absence of a reply, her application may be dismissed.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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, Caitlin Amelia Latham, was employed by the respondent, Karen Zhang, from January 2021 until her dismissal on 28 April 2022. On 2 May 2022, Latham made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The respondent identified their legal business name as Karen Zhang Investments Pty Ltd as trustee for Karen Zhang Family Trust. On 30 June 2022, the Fair Work Commission (FWC) sent correspondence to Latham regarding this discrepancy and requested a response by 7 July 2022. When no response was received, further correspondence was sent on 8 July 2022, directing Latham to respond by 5:00pm on 12 July 2022. Despite this, Latham did not respond to any correspondence.

The court was required to decide whether to dismiss the application for want of prosecution pursuant to s.587(1) and (3)(a) of the Act. This provision allows the FWC 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. Moreover, the court noted that the dismissal power under s.587(1) is not limited to the circumstances set out in s.587(1)(a), (b) and (c). In this case, the FWC decided to dismiss the application for want of prosecution, and an order to that effect will issue with the decision.

In reaching its decision, the FWC noted that the applicant did not respond to any correspondence sent by the Commission regarding the discrepancy in the legal business name. The Commission had warned Latham that failure to respond may result in her application being dismissed. Despite this, Latham did not respond to any correspondence, and therefore the application was dismissed for want of prosecution. The FWC emphasised that it has the jurisdiction to dismiss an application on its own initiative if it is not made in accordance with the Act, or if it is frivolous or vexatious, or has no reasonable prospects of success. In this case, the FWC exercised its discretion to dismiss the application for want of prosecution.

The final orders of the court are that the application for a remedy for unfair dismissal is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act. The applicant is required to pay the respondent's costs of the application, to be taxed on the indemnity basis if not agreed. 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