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

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

In the case of James Tonkin v Elite RV T/A Retailer, the Fair Work Commission (FWC) was called upon to address an application for remedy following an unfair dismissal claim. The applicant, Mr Tonkin, alleged that his dismissal by the respondent, Elite RV, was unjust and sought relief under the Fair Work Act 2009. The dispute centred on the procedural fairness of the dismissal process and whether the respondent complied with the requisite legal standards in terminating Mr Tonkin's employment.

The central legal issues before the FWC were whether the dismissal was indeed unfair and, if so, what remedy, if any, should be granted. Specifically, the Commission needed to determine if Elite RV followed the proper process in dismissing Mr Tonkin, including whether adequate notice was provided and if the dismissal was for a valid reason. Additionally, the FWC had to consider the proportionality of the remedy in light of the evidence presented.

The FWC found that Elite RV had failed to follow the correct procedures in dismissing Mr Tonkin, thus constituting an unfair dismissal. The Commission concluded that the respondent did not provide adequate notice to Mr Tonkin and the dismissal was not for a valid reason. Consequently, the FWC ordered that Mr Tonkin be reinstated to his previous position and awarded compensation for the period of unlawful termination. This decision underscores the importance of adhering to procedural fairness in employment terminations to avoid claims of unfair dismissal.

James Tonkin v Elite RV T/A Retailer

DECISION

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