Kyran Henry v Cafe Kasina Pty Ltd Summary

[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.

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

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.

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.
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.
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.

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

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, Kyran Henry, the applicant, sought an unfair dismissal remedy against Cafe Kasina Pty Ltd, the respondent, under section 394 of the Fair Work Act 2009. The applicant was employed by the respondent from 22 June 2021 until 9 February 2022. The application for unfair dismissal was lodged on 16 February 2022, which was within the requisite time frame. The matter was set for conciliation on 16 March 2022, however, no settlement was reached and the matter was allocated to the Vice President for hearing. The applicant did not respond to correspondence from the Commission on 1 April 2022 or 11 April 2022, despite being given opportunities to respond and warned that failure to do so could result in the dismissal of the application.

The primary issue for determination by the Vice President 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 Vice President found that the application was not made in accordance with the Act, as the applicant failed to respond to the Commission’s correspondence despite multiple opportunities and warnings. The Vice President concluded that the application should be dismissed for want of prosecution.

The Vice President found that the application was not made in accordance with the Act, as the applicant failed to respond to the Commission’s correspondence despite multiple opportunities and warnings. The Vice President noted that the words, “Without limiting when the FWC may dismiss an application,” at the commencement of s.587(1) of the Act, establish that the Commission’s jurisdiction to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c). Therefore, the Vice President 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.

Kyran Henry v Cafe Kasina Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established