Aidan Fleming v Vodafone Hutchinson Australia T/A Vodafone Hutchinson Australia

[2020] FWC 5442

[2020] FWC 5442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aidan Fleming
v
Vodafone Hutchinson Australia T/A Vodafone Hutchinson Australia
(U2020/12201)

VICE PRESIDENT CATANZARITI SYDNEY, 12 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Aidan Fleming was employed by ‘Vodafone Hutchinson Australia T/A Vodafone Hutchinson Australia’. Mr Fleming says that he was employed by ‘Vodafone Hutchinson Australia T/A Vodafone Hutchinson Australia’ from 1 March 2013 to 19 August 2020.

[2] On 10 September 2020, Mr Fleming made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 1 day outside the 21 day period prescribed by s.394(2) of the Act.

[3] On 30 September 2020, my chambers sent Mr Fleming correspondence about the requirement to obtain an extension of time for his application to be validly lodged. I directed him to respond by 5:00 pm on 6 October 2020 in support of obtaining an extension of time in which to validly lodge his application. No response was received.

[4] On 7 October 2020, TPG Telecom Limited T/A TPG Telecom filed an Employers Response (form F3) agreeing that Mr Fleming was dismissed on 19 August 2020 and raised a jurisdictional objection on the basis that Mr Fleming’s application was made out of time.

[5] On 7 October 2020, further correspondence was sent to Mr Fleming directing him to provide a response by 4:00pm on 9 October 2020. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Fleming has not responded to any of the Commission’s correspondence.

[7] 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.

[8] 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).

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

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

VICE PRESIDENT

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