Kandel v Hammondcare [2026] FedCFamC2G 141

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. The respondent has made an application, pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act) and r 23.08 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (the Rules) that the applicant's originating application be summarily dismissed for want of reasonable prospects of success.
2. For reasons that follow, the applicant has no reasonable prospect of successfully prosecuting his application, and it should be dismissed.

1. The applicant was employed by the respondent as a specialised dementia carer.
2. The applicant's employment commenced in or around March or April 2024 (the precise date of commencement is immaterial for present purposes), and was terminated by the respondent on or about 16 July 2024.
3. The applicant then made an application to the Fair Work Commission (FWC). That application was not before the Court, but a letter from the respondent's solicitors dated 1 October 2024 refers to an application that asserted that adverse action had been taken against the applicant contrary to the protections in ss 340 and 351 of the Fair Work Act 2009 (Cth) (FW Act).
4. The FWC issued a certificate under s 368 of the FW Act on 26 August 2024 and the applicant made an application to the Federal Court of Australia on 27 August 2024.
5. The application was transferred to this Court by an order made on 3 December 2024.
6. On 30 June 2025, the applicant lodged an amended application along with a statement of claim.
7. In the part of the application form for setting out the final orders sought by the applicant, the applicant set out the following (as per original):

# Alleged Adverse Action by HammondCare

## 1. Termination of Employment in Contravention of the Fair Work Act 2009

- **Date of Termination**: 16 July 2024

- **Position**: Specialized Dementia Carer

- **Allegations**:

- Termination without proper procedure, violating:

- **Section 340**: Dismissing or injuring an employee because of a workplace right.

- **Section 351**: Discrimination.

- Despite satisfactory performance since 29 April 2024.

- No opportunity to respond to alleged performance issues, violating:

- **Section 387**: Criteria for considering whether a dismissal was unfair.

## 2. Failure to Accommodate Training Schedule

- **Training Schedule Conflict**: Required attendance on Mondays and Tuesdays.

- **Requested Adjustment**: Training on Wednesdays, Thursdays, or Fridays.

- **HammondCare's Response**: No response to the request.

- **Implication**: Belief that this failure was discriminatory, violating **Section 351**.

## 3. Discrimination Based on ADVO Case

- **Date of Meeting**: 14 May 2024

- **Concern Raised**: House manager expressed concerns about the Applicant's police report due to an ADVO case.

- **Applicant's Response**: Clarified the ADVO case was false and police report cleared.

- **Outcome**: House manager did not believe the Applicant, perceived as discriminatory under **Section 351**.

## 4. Failure to Provide Opportunity to Respond to Allegations

- **Date of Call**: 15 July 2024

- **Scheduled Meeting**: 16 July 2024 at 4pm.

- **Meeting Outcome**: Applicant informed of "bad feedback" without details.

- **Termination**: Handed termination letter prepared on 10 July 2024.

- **Violation**: Failure to provide an opportunity to respond, violating **Section 387**.

## 5. Failure to Follow Termination Policies and Procedures

- **Alleged Failures**:

- Not providing an allegations letter.

- Failing to conduct an investigation and meeting.

- Not finalizing investigation outcomes.

- Not allowing response to sustained allegations.

- No disciplinary or termination meeting.

- No show cause letter.

- **Belief**: These failures contravened **Section 387**.

## 6. Failure to Attend Scheduled Shifts

- **Date of Non-Attendance**:

- 18 July 2024 (6:45am - 2:45pm)

- 19 July 2024 (2:30pm - 9:15pm)

- **Reason**: Belief that dismissal was unfair.

7.**Lack of Notification**:

The Respondent did not notify the Applicant of his termination date, nor did they provide him the opportunity to discuss his concerns. The sudden nature of the termination prevented the Applicant from contacting the union, which he intended to involve in the matter.

## Summary

The Applicant alleges that HammondCare took adverse action by terminating his employment without proper procedures, failing to accommodate training, discriminating based on an ADVO case, not providing an opportunity to respond, and not following termination policies. These actions allegedly contravened the Fair Work Act 2009, specifically Sections 340, 351, and 387. Additionally, the Applicant did not attend scheduled shifts on 18 and 19 July 2024 due to the belief that the termination was unfair.

1. The applicant then set out the relief he sought, including reinstatement and compensation.
2. In the section of the application form for the grounds of application, the applicant set out the following (as per original):

# Grounds of Application

The Applicant, Kul Raj Kandel, submits the following grounds for this application regarding the alleged adverse actions taken by HammondCare:

1. **Unlawful Dismissal**: The Applicant contends that his employment was terminated on 16 July 2024 without just cause or adherence to proper procedures, violating the Fair Work Act 2009, specifically:

- **Section 340**: Prohibiting dismissal due to a workplace right.

- **Section 387**: Criteria for unfair dismissal, which includes the failure to provide an opportunity to respond to allegations.

2. **Discrimination**: The Applicant alleges that he faced discrimination based on his personal circumstances, particularly concerning an ADVO case related to his ex-wife, which influenced the house manager's decision-making process and actions.

3. **Failure to Accommodate**: The Applicant asserts that HammondCare failed to accommodate his training schedule despite his requests, which he believes constitutes discriminatory behavior under **Section 351** of the Fair Work Act 2009.

4. **Violation of Internal Policies**: The Applicant claims that HammondCare did not follow its own termination policies and procedures, leading to an unlawful dismissal process that contravened the minimum standards required by law.

5. **Lack of Procedural Fairness**: The Applicant emphasizes the absence of procedural fairness, as he was not provided with specific details regarding the feedback or allegations against him, nor was he allowed to respond prior to termination.

6.**Lack of Notification**:

The Respondent did not notify the Applicant of his termination date, nor did they provide him the opportunity to discuss his concerns. The sudden nature of the termination prevented the Applicant from contacting the union, which he intended to involve in the matter.

These grounds collectively illustrate that the actions taken by HammondCare not only contravene the Fair Work Act 2009 but also undermine the principles of fairness and justice in the workplace.

1. The applicant's statement of claim did not set out the material facts upon which he relied, or articulate the grounds of his application. Rather, the statement of claim appeared to have been directed to setting out the impact of the termination upon the applicant and the remedies he sought accordingly.
2. By its application in a proceeding lodged on 29 July 2025, the respondent seeks an order summarily dismissing the applicant's originating application. Alternatively, the respondent seeks an order striking out the whole of the applicant's statement of claim on the ground it is ambiguous and/or likely to cause prejudice, embarrassment or delay in the proceeding.
3. The solicitor with the conduct of the matter on behalf of the respondent affirmed an affidavit in support of that application annexing relevant documents from the proceeding. In a letter dated 1 October 2024 concerning the application then before the Federal Court of Australia, the respondent's solicitors stated (as per original):

...there is no basis for asserting that adverse action was taken against you because you did or did not exercise, or proposed to exercise or not exercise, a workplace right within the meaning of sections 340 and 341 of the Fair Work Act 2009 (Cth), or that that you were discriminated against because of a protection attribute identified in section 351 of the Fair Work Act. Your claim proceeds on the basis of your "personal circumstances" which is not of itself a protected attribute.

1. The respondent's solicitors invited the applicant to discontinue.
2. In reply, the applicant wrote as follows by email on 1 October 2024:

...

Regarding the merits of my claim, I respectfully disagree with your assessment. I believe that I have a valid case under the general protections provisions of the Fair Work Act 2009. It is my understanding that the Act explicitly prohibits discrimination against employees based on their personal circumstances, which I assert was violated in my case.

1. The respondent's interlocutory application was heard before me on 18 December 2026. The applicant appeared in person.
2. The following documents were received into evidence, without objection:

(1) Affidavit of Megan Bowe, solicitor for the respondent, affirmed on 29 July 2025; and

(2) Affidavits affirmed by the applicant on 8 September 2025 and on 16 December 2025.

1. The principles governing the exercise of the power to dismiss an application for want of prospects are not controversial.
2. In Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [7], Perry J summarised the principles applicable to an application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (the analogue of s 143 of the FCFCOA Act):

The principles governing the application of s 31A are well established and can be summarised as follows:

(1) The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2) With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

... will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories.

(3) Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be "manifestly groundless" or "hopeless": Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4) An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:

...the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6) To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant's success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour's view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

1. Although the respondent has a high hurdle to overcome in the present application, and the power to dismiss a proceeding should be exercised cautiously, I am satisfied that it is appropriate to so order in the present matter.
2. It is apparent from the applicant's application that his complaint about the termination of his employment concerns two aspects of the termination. First, he alleges that the termination was motivated because he was the subject of an application for an apprehended domestic violence order (ADVO). Second, he alleges that the manner of his dismissal was unfair because of a failure by the respondent to observe certain procedures in respect of it. At the hearing, the applicant contended that he was dismissed from his employment with the respondent because he had raised with his manager that he had proceedings for an ADVO brought against him. He stated that was the sole reason underlying his claim, in addition to the alleged failure of the respondent to follow certain procedures in respect of his termination. The applicant's application, as set out above, alleged that he had not been given an opportunity to respond to allegations against him before being dismissed.
3. The fact that the applicant was the subject of an application for an ADVO is not a matter that attracts protection in respect of adverse action under either ss 340 or 351 of the FW Act. Section 340 provides a protection against adverse action taken against an employee, because of the employee's possession, exercise, potential or proposed exercise of workplace rights. Section 351 provides a protection against adverse action taken against an employee because of the employee having one or more of a number of familiar attributes, which attract protections under a range of other anti-discrimination laws, such as race, colour, sex, disability, gender identity and so on. Amongst the attributes attracting the protection of that section is "subjection to family and domestic violence". The applicant did not claim that he had been subject to family or domestic violence. Neither section provides a protection which is premised upon the applicant having been the subject of an application for an ADVO.
4. To the extent the applicant is aggrieved by the unfairness of his dismissal, by the respondent's failure to follow its own policies, or the procedure (or lack thereof) adopted by the respondent in respect of it, this Court has no power to give a remedy to the applicant under the FW Act. Neither ss 340 nor 351 prescribe the procedure that must attend a dismissal; they proscribe dismissals for particular identified reasons. The applicant's application refers to s 387 of the FW Act. That section sets out the factors that must be taken into account by the Fair Work Commission when it considers unfair dismissal applications. This Court does not have the jurisdiction to deal with unfair dismissal applications; the FW Act vests that power in the Fair Work Commission.
5. Giving the material the applicant places before the Court a generous reading, I am unable to discern a reasonably arguable cause of action which is within this Court's jurisdiction. Although the applicant served an affidavit dated 16 December 2025 in which he indicated he wishes to amend his application to rely on s 772(1)(f) of the FW Act, that does not reveal the existence of a cause of action with reasonable prospects. That section provides an alternative basis for a remedy for termination because of one of the protected attributes that are listed in s 351 of the FW Act. It does not afford a remedy for an employee dismissed because an ADVO application has been made against them.
6. The facts leading to the bringing of those proceedings are not before the Court. It is not necessary, for the purposes of considering this application, for the Court to determine the employer's reasons for dismissing the applicant, nor to make any finding about the application for the ADVO brought against the applicant. The Court does not have sufficient evidence before it to determine those matters and expressly refrains from making any finding. However, for the purposes of the present application, assuming that the applicant's contention is correct and he was dismissed because of the application for the ADVO proceedings, or was dismissed without a fair procedure having been adopted, that would not entitle the applicant to a remedy in this Court under ss 340 or 351 of the FW Act, or otherwise. The applicant has not identified any other feature of his dismissal that could give rise to a remedy in this Court. Accordingly, the application does not have reasonable prospects of success and will be dismissed.
7. It is unnecessary in those circumstances to consider the applicant's alternative claim for relief in respect of the pleading.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.