Kaveeta Shalini Prasad v Melbourne Institute of Technology Summary

[2023] FWC 956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kaveeta Shalini Prasad

Melbourne Institute of Technology

(U2023/1639)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 APRIL 2023

Application for an unfair dismissal remedy.

Kaveeta Shalini Prasad (the applicant) was employed by Melbourne Institute of Technology (the respondent) from the 10^th of March 2022 until she resigned on the 7^th of February 2023.

On the 28^th of February 2023, 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 Melbourne Institute of Technology Pty Ltd.
On the 30^th of March 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and she was required to respond by the 6^thof April 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 11^th of April 2023 and she was required to respond by 5:00pm the 14^th of April 2023. It was in this correspondence that the applicant was advised her 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

In the Fair Work Commission, Kaveeta Shalini Prasad brought an application for an unfair dismissal remedy against Melbourne Institute of Technology, as per section 394 of the Fair Work Act 2009. Ms. Prasad had been employed by the respondent from 10 March 2022 until she resigned on 7 February 2023. Following her resignation, Ms. Prasad applied for a remedy for unfair dismissal, which was filed on 28 February 2023. In the proceedings, it was noted that the respondent's legal business name was Melbourne Institute of Technology Pty Ltd, which differed from the name nominated in the F3 – Employer’s Response Form. The applicant was subsequently given multiple opportunities to correct the discrepancy in the legal business name but failed to do so, resulting in the application being dismissed without notice.

The legal issues before the Commission involved the proper procedure for filing an unfair dismissal remedy under the Fair Work Act 2009, the consequences of failing to adhere to the prescribed procedures, and the Commission's authority to dismiss an application for want of prosecution. The central question was whether the Commission had the jurisdiction to dismiss Ms. Prasad's application under section 587 of the Act due to her failure to respond to the correspondence regarding the legal business name discrepancy.

The Vice President, Catanzariti, found that the statutory provision for dismissing an application, as outlined in section 587 of the Act, was not exhaustive, thereby granting the Commission the authority to dismiss applications for various reasons, including a lack of prosecution. Since Ms. Prasad had not responded to the correspondence sent to her, her application was dismissed without notice, as per the provisions of section 587(3)(a). This decision was made in accordance with the Act and the Commission's inherent jurisdiction. Consequently, the Commission decided to dismiss the application for want of prosecution.

An order will be issued with this decision, dismissing the application for unfair dismissal remedy brought by Kaveeta Shalini Prasad against Melbourne Institute of Technology for want of prosecution.

Kaveeta Shalini Prasad v Melbourne Institute of Technology

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established