James Tonkin v Elite RV T/A Retailer

[2020] FWC 3952

[2020] FWC 3952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Tonkin
v
Elite RV T/A Retailer
(U2020/7368)

VICE PRESIDENT CATANZARITI SYDNEY, 29 JULY 2020

Application for an unfair dismissal remedy.

[1] On 28 May 2020, the Fair Work Commission (the Commission) received an application from James Tonkin for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Elite RV T/A Retailer’.

[2] Mr Tonkin said his dismissal took effect on 21 May 2020. Elite RV Pty Ltd (the respondent) said Mr Tonkin’s dismissal took effect on 3 April 2020. Accordingly, if the date the respondent provided was correct, it appeared Mr Tonkin had lodged his application more than 21 days after his dismissal took effect.

[3] On 7 July 2020, my chambers sent Mr Tonkin correspondence about the discrepancy in the dates he and the respondent had provided. I directed him to respond by 5:00 pm on 10 July 2020 either explaining why he believed he had lodged his application within time, or providing a statement in support of obtaining an extension of time. However, no response was received.

[4] On 13 July 2020, my chambers sent further correspondence to Mr Tonkin, directing him to respond by 4:00 pm on 15 July 2020, and advising that if he did not respond, his application may be dismissed.

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

[6] 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 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.”

[7] The words, “[w]ithout 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721345>