Kael Foote v Ki-Carma

[2022] FWC 2144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kael Foote
v

Ki-Carma

(U2022/5786)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 AUGUST 2022

Application for an unfair dismissal remedy.

Kael Foote (the applicant) was employed by Ki-Carma (the respondent) from the 18^th of June 2020 until he was dismissed on the 26^th of May 2022.

On the 27^th of May 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 Ki Carma FNQ Pty Ltd.
On the 19^th of July 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 26^th of July 2022. No response was received at this time.
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

The Fair Work Commission heard an application from Kael Foote against Ki-Carma for unfair dismissal under the Fair Work Act 2009. The applicant, who was employed by the respondent from June 2020 until his dismissal in May 2022, sought a remedy for unfair dismissal. The respondent's legal business name was Ki Carma FNQ Pty Ltd, as indicated in their F3 – Employer’s Response Form. Despite being notified of a discrepancy in the legal business name and required to respond by July 26, 2022, the applicant did not respond to any correspondence from the Commission.

The primary legal issue before the Commission was whether the application could be dismissed for want of prosecution under section 587(3)(a) of the Act. The Commission considered the applicant's failure to respond to correspondence regarding the legal business name discrepancy, and his overall inactivity in the proceedings. The Commission noted that section 587(1) of the Act provides that the jurisdiction to dismiss an application is not limited to the circumstances set out in subsections (a), (b), and (c), implying broader discretionary powers.

In dismissing the application, the Commission relied on the applicant's failure to respond to correspondence and the overall lack of prosecution. The Commission concluded that the application was not being pursued diligently and, therefore, dismissed the application for want of prosecution under section 587(3)(a) of the Act. An order to this effect will accompany the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established