Mr Allan Kadel v Coal Mine Broadmeadow Mine

[2017] FWC 6393

[2017] FWC 6393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Allan Kadel
v
Coal Mine Broadmeadow Mine
(U2017/10062)

DEPUTY PRESIDENT DEAN SYDNEY, 4 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 17 September 2017, Mr Allan Kadel made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kadel’s application filed on 17 September 2017 was incomplete as it did not state the name of his former employer. On 2 October 2017, Mr Kadel emailed the Fair Work Commission (the Commission) to confirm his former employer was Coal Mine Broadmeadow Mine (the Respondent). The application states that Mr Kadel commenced employment with the Respondent in 2014 and that his dismissal took effect on 24 September 2016.

[3] The application appeared to have been filed 337 days outside the 21 day period prescribed by s.394(2) of the Act. The matter was therefore allocated to my chambers on 6 October 2017 to determine whether an extension of time should be granted.

[4] On 16 October 2017, the Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy and stated that their legal name was Broadmeadow Mine Services Pty Ltd. In its response, the Respondent raised a jurisdictional objection to the application that Mr Kadel was not an employee. The Respondent stated that they are a provider of labour to the Broadmeadow Mine, but they are not Mr Kadel’s employer. The Respondent stated that Mr Kadel was employed by Workpac Pty Ltd at all relevant times.

[5] On 17 October 2017, my chambers sent the following correspondence to Mr Kadel:

“Dear Mr Kadel,

I refer to the Form F3 received from Broadmeadow Mine Services Pty Ltd (the Respondent), a copy of which is attached to this email.

As discussed, the Respondent has raised a jurisdictional objection to your application on the basis that you were not an employee of the Respondent and you were an employee of Workpac Pty Ltd. It would appear, based on the payment advice attached to your application that Workpac Pty Ltd was your employer.

If it is correct that you were an employee of Workpac Pty Ltd and not a direct employee of the Respondent, you cannot bring an unfair dismissal claim against the Respondent.

Please advise, within 7 days, whether you wish to proceed with your application. If you do wish to proceed, please provide a response to the Respondent’s jurisdictional objection within 7 days. If you do not wish to proceed then you may discontinue your application by return email.”

[6] On 7 November 2017, further correspondence was sent to Mr Kadel as follows:

“Dear Mr Kadel

Please note the correspondence sent below on 17 October 2017.

You are directed to respond by 4:00pm on Friday 10 November 2017, otherwise your application may be dismissed.”

[7] On 14 November 2017, Mr Kadel sent an email to the Commission which stated: “[P]lease note correspondence sent on the 10^th Nov I am now communicating with Workpac, they have requested me to complete more forms.”

[8] On 17 November 2017, my chambers sent further correspondence to Mr Kadel, again asking him to confirm whether he intended to proceed with his application by 4pm on Friday 24 November 2017.

[9] To date, Mr Kadel has not provided any response to the Commission’s correspondence dated 17 November 2017, nor has he sought any extension of time to so.

[10] Section 587(1) 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.

[11] In the circumstances of this matter, I am satisfied Mr Kadel’s application has no reasonable prospects of success as the claim has not been made against the correct employer. Consequently, the application is dismissed under s.587(1)(c) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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