Jarrod Cassidy v Dairy Free Downunder

[2024] FWC 1135

[2024] FWC 1135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jarrod Cassidy
v

Dairy Free Downunder

(U2024/2435)

DEPUTY PRESIDENT EASTON SYDNEY, 1 MAY 2024

Application for an unfair dismissal remedy

1. Mr Jarrod Cassidy was dismissed from his employment on 15 December 2023. On 4 March 2024, Mr Cassidy filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his application Mr Cassidy named “Dairy Free Downunder” as his former employer.

1. The legal business name nominated by the Respondent in its F3 – Employer’s Response Form was DFDU Pty Ltd.

1. An unfair dismissal application can only be made against the entity that employed the Applicant.

1. On 9 April 2024, correspondence was sent to Mr Cassidy regarding the legal name of his former employer. The correspondence invited Mr Cassidy to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. Mr Cassidy was required to respond by 16 April 2024. Mr Cassidy did not respond to this correspondence.
   
   

2. Further correspondence was sent to Mr Cassidy on 17 April 2024 making the same request. Mr Cassidy was required to respond by 22 April 2024. Mr Cassidy was also advised that his application may be dismissed without further notice if he did not respond. Mr Cassidy did not respond to this correspondence.

1. On 23 April 2024, the Commission attempted to contact Mr Cassidy via telephone. However, Mr Cassidy could not be reached. A voicemail message was left advising Mr Cassidy to respond to the correspondence as soon as possible. The voicemail also warned that if he did not contact the Commission his application would be dismissed without further notice.

1. To date, Mr Cassidy has not responded to any of the Commission’s attempts to contact him.

1. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

1. 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).

1. In the circumstances I have decided to dismiss Mr Cassidy’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR774401).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR774400>