Joshua Keefe v Allwest Recruitment Pty Ltd Summary

[2023] FWC 277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Keefe
v

Allwest Recruitment Pty Ltd

(U2022/11932)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 FEBRUARY 2023

Application for an unfair dismissal remedy.

Joshua Keefe (the applicant) was employed by Allwest Recruitment Pty Ltd (the respondent) from the 20^th of August 2020 until he was dismissed on the 28^th of November 2022.

On the 16^th of December 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Michael Thorne.
On the 12^th of January 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 19^th of January 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 20^th of January 2023 and he was required to respond by the 5:00pm 25^th of January 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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

Joshua Keefe has brought a claim for unfair dismissal against his former employer, Allwest Recruitment Pty Ltd, before the Fair Work Commission (FWC). The applicant, Mr Keefe, was employed by the respondent from August 2020 until his dismissal on 28 November 2022. He filed his application for unfair dismissal remedy on 16 December 2022. The respondent, Allwest Recruitment, was represented by Michael Thorne, as per their F3 – Employer’s Response Form. Following Mr Keefe's failure to respond to correspondence from the FWC, the Commission was required to consider whether to dismiss the application under s.587 of the Fair Work Act 2009.

The primary legal issue before the FWC was whether to dismiss Mr Keefe’s application for unfair dismissal on the grounds of want of prosecution. The FWC considered whether the application was being prosecuted in accordance with the Act, whether it was frivolous or vexatious, or whether it had no reasonable prospects of success. Section 587(1) of the Act allows the FWC to 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 FWC also noted that, under s.587(3), the application may be dismissed on its own initiative or on application.

The FWC concluded that the application should be dismissed for want of prosecution as Mr Keefe failed to respond to correspondence sent by the Commission. The Commission found that the words “without limiting when the FWC may dismiss an application” in s.587(1) of the Act establish that the FWC's jurisdiction to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b), and (c). Given Mr Keefe’s non-response, the FWC exercised its discretion to dismiss the application under s.587(3)(a). An order to that effect will issue with this decision.

Joshua Keefe v Allwest Recruitment Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established