Stephen Lewin v Return It (Queensland) Depot Pty Limited T/A ReTurn It

[2021] FWC 1552

[2021] FWC 1552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Lewin
v
Return It (QUEENSLAND) Depot Pty Limited T/A ReTurn It
(U2021/182)

VICE PRESIDENT CATANZARITI SYDNEY, 23 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 7 January 2021, Stephen Lewin (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Return It (QUEENSLAND) Depot Pty Limited T/A ReTurn It.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 4 February 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant and his representative on 3 March 2021, directing him to advise us by 4:00pm on 10 March 2021 whether he still pressed his application.

[4] The applicant’s representative replied to my chambers on 10 March 2021 filing a Notice of Representative Ceasing to Act and advised they made 15 points of urgent contact with the applicant since 28 January 2021 and at least 8 of those times were made since the email from chambers dated 3 March 2021. The applicant’s representative further advised the applicant responded to them albeit after hours on 9 March 2021 and made further contact with them on the morning of 10 March 2021 but they were unable to confirm instructions from the applicant. A response from the applicant was not received by my chambers by the 10 March 2021 deadline.

[5] On 11 March 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 16 March 2021. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, the applicant 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.

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.”

[8] 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).

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

VICE PRESIDENT

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