Jordan Saunders v KFC Raymond Terrace T/A Raymond Family Partnership

[2022] FWC 1460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jordan Saunders
v

KFC Raymond Terrace T/A Raymond Family Partnership

(U2022/3235)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 JUNE 2022

Application for an unfair dismissal remedy.

Jordan Saunders was employed by KFC Raymond Terrace from the 8^th of July 2020 until they were dismissed on the 25^th of February 2022.

On the 16^th of March 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 Jordan Saunders has named the incorrect employer in their Unfair Dismissal Claim under s.394 of the Fair Work Act 2009.
On the 26^th of May 2022, correspondence was sent to the applicant in relation to the jurisdictional objections raised by KFC Raymond Terrace and they were required to respond by the 2^nd of June 2022. No response was received from Jordan Saunders at this time.
On the 3^rd of June 2022, further correspondence was sent to the applicant directing them to provide a response by 5:00pm on the 8^th of June 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Jordan Saunders 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

In this case, Jordan Saunders sought a remedy for unfair dismissal from KFC Raymond Terrace, a fast food franchise. Saunders was employed by the respondent from July 2020 until his dismissal on February 25, 2022. Saunders lodged his application for unfair dismissal on March 16, 2022. KFC Raymond Terrace objected to the application, asserting that Saunders had named the wrong employer in his claim. The Commission sent correspondence to Saunders on May 26, 2022, seeking a response to the jurisdictional objections raised by the respondent. Saunders did not respond to the correspondence and further correspondence was sent on June 3, 2022, requiring a response by June 8, 2022. Saunders did not respond to this correspondence or the jurisdictional objections.

The primary legal issue before the Commission was whether the application should be dismissed for want of prosecution. The Fair Work Act 2009 provides that the Commission may dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission must not dismiss an application under section 365 or 773 on the ground that it is frivolous or vexatious or has no reasonable prospects of success. The Commission may dismiss an application on its own initiative or on application. The Vice President found that the application should be dismissed for want of prosecution.

The Vice President dismissed the application for want of prosecution. Saunders had failed to respond to the jurisdictional objections raised by KFC Raymond Terrace or to any correspondence sent by the Commission. The Vice President found that the application had no reasonable prospects of success and was therefore dismissing the application. 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