Andrew Doronila v J Functions and Catering Pty Ltd

[2020] FWC 6837

[2020] FWC 6837

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Doronila
v
J Functions and Catering Pty Ltd
(U2020/14777)

VICE PRESIDENT CATANZARITI SYDNEY, 24 DECEMBER 2020

Application for an unfair dismissal remedy - Fair Work Act 2009 (Cth) s.603 – revocation of decision [2020] FWC 6523 and order PR725152 – application to be reallocated to determine merits.

[1] On 13 November 2020, Andrew Doronila (the applicant) lodged an application for a remedy for unfair dismissal with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with J Functions and Catering Pty Ltd (the respondent). The applicant said that his dismissal took effect on 22 October 2020.

[2] My chambers sent the applicant correspondence on 23 November 2020 about the requirement to obtain an extension of time for his application to be lodged. No response was received from the applicant. Further correspondence was sent by my chambers to the applicant on 27 November 2020 directing him to provide a response. The Commission did not receive a response from the applicant.

[3] On 7 December 2020, the Commission issued a decision and order 1 (the 7 December 2020 decision and order) dismissing the application on its own initiative pursuant to s.587(3)(a) of the Act, as it appeared that the applicant had failed to respond to chambers’ correspondence directing him to respond to the out of time issue.

[4] On 9 December 2020, the applicant contacted my chambers regarding the 7 December decision and order raising the following concerns:

•  Email correspondence sent by my chambers dated 23 November 2020, 27 November 2020 and 7 December 2020 only came to the applicant’s attention on 9 December 2020. The applicant did not receive the 23 November 2020 email and only knew about the email as it was enclosed in the 27 November 2020 email.

•  The applicant was told by a Commission staff member on 20 November 2020 that he should expect a phone call from chambers regarding a status update query that he had made.

•  The applicant lodged his application form within the statutory 21-day timeframe and had received confirmation of this from the Commission.

[5] On 11 December 2020, my chambers sent correspondence to the respondent to advise them about the applicant’s submissions and that my preliminary view was to revoke the 7 December 2020 decision and order and to allow the matter to proceed.

[6] On 14 December 2020, the respondent replied to my chambers’ correspondence advising that they would like to be heard in relation to my preliminary view.

[7] On 16 December 2020, the matter was listed for a hearing to determine whether the 7 December 2020 decision and order should be revoked because the applicant did not respond to the Commission’s email correspondence. The applicant gave evidence on oath and provided evidence of inconsistent information from the Client Services Branch of the Commission which indicated that the application was made within time.

[8] In the circumstances, I have decided to revoke the 7 December 2020 decision and order pursuant to s.603 of the Act. An order to that effect will issue with this decision.

[9] The application will be reallocated to another Member to determine the merits of the application.

VICE PRESIDENT

Appearances:

The applicant appeared for himself.

Mr J Thomas appeared on behalf of the respondent.

Hearing details:

16 December.
By Telephone:
2020.

Printed by authority of the Commonwealth Government Printer

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 1   Doronila v J Functions and Catering Pty Ltd[2020] FWC 6523 and PR725152.