Michael Rhodes v GPI (General) Pty Ltd T/A PFM Corp/Atlantis Move Smart

[2018] FWC 2919

[2018] FWC 2919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Rhodes
v
GPI (General) Pty Ltd T/A PFM Corp/Atlantis Move Smart
(U2018/2712)

DEPUTY PRESIDENT DEAN SYDNEY, 24 MAY 2018

Application for an unfair dismissal remedy.

[1] On 15 March 2018, Mr Michael Rhodes made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 20 March 2018, GPI (General) Pty Ltd T/A PFM Corp/Atlantis Move Smart (GPI) filed the Form F3 – Employers Response, objecting to the application on the grounds that Mr Rhodes was not an employee of GPI.

[3] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 16 April 2018 and was not resolved.

[4] The application was allocated to me to determine GPI’s jurisdictional objection.

[5] Correspondence was sent to Mr Rhodes on 2 May 2018 asking him to respond to the assertion by GPI that he had not been employed by GPI. The correspondence required him to file in the Commission any documents that may confirm that he had been an employee of GPI.

[6] On 7 May 2018, Mr Rhodes wrote to the Commission confirming he had been employed by a labour hire company named All States Personnel.

[7] On 10, 16 and 18 May 2018, the Commission sought a response from Mr Rhodes as to his intentions in relation to his application, given an application can only be made against his former employer. He was advised that in the absence of any response, his application may be dismissed.

[8] To date, Mr Rhodes has not responded to the Commission’s further requests for a response.

[9] Section 587(1) 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.

[10] 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).

[11] In circumstances where Mr Rhodes has confirmed that GPI was not his employer, and has not responded to numerous requests for a response, I have decided to dismiss the application as I consider it has no reasonable prospects of success pursuant to s.587(3)(a) of the Act.

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

DEPUTY PRESIDENT

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