1 Fair Work Act 2009 s.394—Unfair dismissal Christie John v Aldi Stores (A Limited Partnership) (U2023/12516) VICE PRESIDENT CATANZARITI SYDNEY, 19 FEBRUARY 2024 Application for an unfair dismissal remedy [1] Christie John (the Applicant) was employed by Aldi Stores (A Limited Partnership) (the Respondent) from 7 September 2020 until they were dismissed on 12 December 2023. [2] The legal business name nominated by the Respondent in their F3 – Employer’s Response Form in this matter was ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership). An unfair dismissal application should be lodged against the entity that employed the Applicant. [3] The Applicant also did not attend the scheduled conciliation on 15 January 2024. [4] On 29 January 2024, correspondence was sent to the Applicant regarding the legal name discrepancy and the no-show issue. The correspondence directed the Applicant to respond confirming their intention to proceed with the matter and also either request to amend the application to name a different entity as their former employer or provide submissions as to why the entity they had nominated was the correct entity. No response was received at this time. [5] Further correspondence was sent to the Applicant on 6 February 2024, and they were required to respond by 5:00pm on 9 February 2024. It was in this correspondence that the Applicant was advised the application may be dismissed without any notice if no response was received. [6] On 9 February 2024, the Applicant responded stating that they were overseas, had broken their phone and had only just seen the emails. The legal name discrepancy issue was not addressed. [7] On 12 February 2024, correspondence was sent to the Applicant confirming receipt of the 9 February email and seeking a response to the legal name discrepancy issue by 4:00pm the same day. [2024] FWC 446 DECISION [2024] FWC 446 2 [8] On 13 February 2024 the Commission attempted to contact the Applicant via telephone. However, the Applicant could not be reached, and the voicemail appeared not to belong to the Applicant. A voicemail message was left advising the recipient to ask the Applicant to respond to the correspondence as soon as possible. The voicemail also warned that if they did not contact the Commission the application may be dismissed without further notice. Email correspondence was then sent confirming a voicemail as left and seeking a response to the legal name discrepancy issue by 14 February 2024. [9] To date, the Applicant has not provided a response to the legal name discrepancy issue raised with them. [10] 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. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [11] 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). [12] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. [13] An order to that effect will issue with this decision. VICE PRESIDENT [2024] FWC 446 3 Printed by authority of the Commonwealth Government Printer <PR771582>