Corey Read v The Trustee for Hawthorne Family Trust Summary

[2022] FWC 2895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Corey Read
v

The Trustee For Hawthorne Family Trust

(U2022/7972)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 OCTOBER 2022

Application for an unfair dismissal remedy.

Corey Read (the applicant) was employed by The Trustee For Hawthorne Family Trust (the respondent) from the 3^rd of August 2021 through to the 15^th of July 2022 on a full-time employment basis.

On the 1^st of August 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.
There was also a dispute between the legal business names mentioned in the F2 – Unfair Dismissal Application and the F3 – Employer’s Response Forms.
On the 16^th of September 2022, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 23^rd of September 2022. No response was received from the applicant at this time.
On the 26^th of September 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 28^th of September 2022. 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 case of Corey Read v The Trustee for Hawthorne Family Trust was heard by the Fair Work Commission in Sydney. Corey Read, the applicant, sought a remedy for unfair dismissal against The Trustee for Hawthorne Family Trust, the respondent, under section 394 of the Fair Work Act 2009. The respondent objected to the application on the grounds that Read did not meet the minimum employment period required to lodge an application under the Act, and also raised a dispute about the legal business names mentioned in the application forms. The application was dismissed by the Vice President, Catanzariti, on 31 October 2022, as Read had failed to respond to jurisdictional objections and correspondence from the Commission.

The legal issues before the court were whether Read had met the minimum employment period required to lodge an application under section 394 of the Act, and whether there was any merit to the application. The court also had to consider whether the application was frivolous or vexatious, or had no reasonable prospects of success. The respondent argued that the application should be dismissed on the grounds that it was frivolous or vexatious, or had no reasonable prospects of success.

The court found that the applicant had not responded to jurisdictional objections and correspondence from the Commission, and therefore the application was dismissed for want of prosecution pursuant to section 587(3)(a) of the Act. The court noted that the jurisdictional objections raised by the respondent were valid, and that the applicant had failed to address them. The court also found that the application had no reasonable prospects of success, as the applicant had not met the minimum employment period required to lodge an application under section 394 of the Act. The court therefore dismissed the application.

The court ordered that the application be dismissed for want of prosecution, and an order to that effect will issue with this decision.

Corey Read v The Trustee for Hawthorne Family Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established