Kyran Henry v Cafe Kasina Pty Ltd

[2022] FWC 1067

[2022] FWC 1067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyran Henry
v

Cafe Kasina Pty Ltd

(U2022/2556)

VICE PRESIDENT CATANZARITI SYDNEY, 6 MAY 2022

Application for an unfair dismissal remedy.

1. Kyran Henry was employed by Café Kasina Pty Ltd from the 22^nd of June 2021 through to the 9^th of February 2022.

1. On the 16^th of February 2022, Kyran Henry made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged in time.

1. This matter was listed for conciliation on the 16^th of March 2022, however the parties did not settle and the matter was allocated to my chambers.
   
   

2. On the 1^st of April 2022, correspondence was sent to Kyran Henry addressing the jurisdictional objections raised by Café Kasina Pty Litd and he was given until Friday the 8^th of April 2022 to respond to this correspondence. No response was ever received.
   
   

3. On the 11^th of April 2022, further correspondence was sent to Kyran Henry directing him to provide a response by 5:00pm on the 14^th of April 2022. He was advised that in the absence of a reply their application may be dismissed.

1. To date, Kyran Henry has not responded to any of the Commission’s correspondence.

1. 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.

1. 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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