Jonathon-Ross Beecham v Krio Krush Basic Foods Pty Ltd

[2022] FWC 3119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jonathon-Ross Beecham
v

Krio Krush Basic Foods Pty Ltd

(U2022/10002)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 NOVEMBER 2022

Application for an unfair dismissal remedy.

Jonathon-Ross Beecham (the applicant) was employed by Krio Krush Basic Foods Pty Ltd (the respondent) from the 1^st of June 2021 until he was dismissed on the 19^th of September 2022.

On the 12^th of October 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

According to the respondent’s F3 – Employer’s Response Form, the application was lodged 2 days out of time.
On the 10^th of November 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 15^th of November 2022.
On the 16^th of November 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 17^th of November 2022. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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

Jonathon-Ross Beecham lodged an application for unfair dismissal against his former employer, Krio Krush Basic Foods Pty Ltd, under section 394 of the Fair Work Act 2009. Beecham was employed by Krio Krush from 1 June 2021 until his dismissal on 19 September 2022. On 12 October 2022, Beecham applied for a remedy for unfair dismissal, but the respondent claimed the application was lodged two days out of time. The Fair Work Commission (FWC) sent Beecham correspondence on 10 November 2022, requesting a response by 15 November 2022. After Beecham did not respond, the FWC sent further correspondence on 16 November 2022, directing him to respond by 5:00pm on 17 November 2022. Beecham did not respond to either correspondence. The FWC considered the relevant statutory provisions and decided to dismiss the application for want of prosecution.

The legal issues before the FWC were whether the application was made in accordance with the Act, whether the application was frivolous or vexatious, and whether the application had reasonable prospects of success. The FWC found that the application was not made in accordance with the Act because it was lodged two days out of time. Additionally, the FWC considered that the application had no reasonable prospects of success because the applicant failed to respond to correspondence from the FWC. The FWC also noted that it had jurisdiction to dismiss the application under section 587(3)(a) of the Act. Based on these findings, the FWC dismissed the application for want of prosecution.

The FWC dismissed the application for unfair dismissal for want of prosecution, as the applicant failed to respond to correspondence from the FWC after being notified that the application was lodged out of time. The FWC found that the application was not made in accordance with the Act and that it had no reasonable prospects of success. The FWC exercised its jurisdiction to dismiss the application under section 587(3)(a) of the Act. An order to that effect will issue with this decision.

The FWC will issue an order dismissing the applicant's application for unfair dismissal for want of prosecution. The applicant's failure to respond to correspondence from the FWC after being notified that the application was lodged out of time led to the dismissal of the application. The FWC found that the application was not made in accordance with the Act and that it had no reasonable prospects of success. The FWC exercised its jurisdiction to dismiss the application under section 587(3)(a) of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established