John Kimo v Allracks and Ute Accessories Pty Ltd, Junior Kumar
[2025] FWC 597
•27 FEBRUARY 2025
| [2025] FWC 597 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
John Kimo
v
Allracks And Ute Accessories Pty Ltd, Junior Kumar
(C2025/474)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 27 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal
On 16 January 2025, Mr John Kimo (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application to deal with contraventions involving dismissal (Application). The Respondents to the Application are Allracks And Ute Accessories Pty Ltd and Mr Junior Kumar (Respondents).
Prior to the matter being conciliated, there was a jurisdictional objection that needed to be resolved, being whether the Application was made out of time (i.e. filed more than 21 days after the date the Applicant’s employment ended) and whether an extension of time should be granted under s.366 of the Act. The matter was set down for jurisdictional hearing and Directions were issued for the filing of evidence.
Direction [2] of the Directions issued on 14 February 2025 reads:
“[2]By 4.00pm AEDT on Friday, 21 February 2025, the Applicant is to either:
a. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
b. file with the Commission and serve on the Respondents an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.”
The Applicant did not comply with Direction [2].
On 24 February 2025, at 3:10PM AEDT, the following email (Show Cause Email) was sent to the Applicant:
“Dear Mr Kimo,
Re: C2025/474 - John Kimo v Allracks And Ute Accessories Pty Ltd & Junior Kumar
I refer to the matter above.
Background
On 14 February 2025, the Fair Work Commission issued the attached Directions in this matter.
Direction [2] of those directions read as follows:
[2] By 4.00pm AEDT on Friday, 21 February 2025, the Applicant is to either:
a. advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
b. file with the Commission and serve on the Respondents an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.
To date, Chambers has not received any materials in compliance with Direction [2].
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Tomorrow, Tuesday 25 February 2025.
[2] If the Applicant does not comply with Direction [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.
Yours faithfully,
[Associate]”
The Applicant has made no response to the Show Cause Email.
On 26 February 2025, at approximately 12:15PM AEDT, Chambers attempted to contact the Applicant by placing a phone call to the Applicant, to which no response was received (Phone Call).
Legislative Provisions
Section 587 of the Act reads:
“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.
In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [2] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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