Trent Rosewall v Clarkes Design Construction Summary

[2023] FWC 906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Trent Rosewall
v

Clarkes Design Construction

(U2023/1842)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 APRIL 2023

Application for an unfair dismissal remedy.

Trent Rosewall (the applicant) was employed by Clarkes Design Construction (the respondent) from the 23^rd of June 2022 until he was dismissed on the 24^th of February 2023.

On the 7^th of March 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Clarke's Project Management Pty Ltd atf Clarke's Project Management Trust.
On the 24^th of March 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 31^st of March 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 3^rd of April 2023 and he was required to respond by 5:00pm the 6^th of April 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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.

(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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Trent Rosewall, lodged an unfair dismissal application against Clarkes Design Construction, which was originally identified as Clarke's Project Management Pty Ltd atf Clarke's Project Management Trust. The applicant was dismissed from his employment on 24 February 2023 and subsequently applied for a remedy under s.394 of the Fair Work Act 2009. The application was challenged due to the discrepancy in the name of the respondent provided in the application and the employer identification form. The applicant was given two opportunities to rectify the discrepancy, but did not respond to correspondence from the Commission. The Commission had to decide whether the application could be dismissed for want of prosecution under s.587 of the Act.

The primary legal issue before the Commission was whether the applicant's failure to respond to correspondence regarding the respondent's name discrepancy justified dismissal of the application. The relevant section of the Act provided that the Commission could dismiss an application if it had no reasonable prospects of success. The Commission noted that the failure to respond to correspondence from the Commission could indicate that the application had no reasonable prospects of success. The Commission also considered that the jurisdiction to dismiss an application was not limited to the circumstances set out in s.587(1)(a), (b) and (c) of the Act.

The Commission found that the applicant's failure to respond to correspondence regarding the discrepancy in the name of the respondent justified dismissal of the application. The Commission noted that the words "Without limiting when the FWC may dismiss an application" in s.587(1) of the Act established that the jurisdiction of the Commission to dismiss an application was not limited to the circumstances set out in s.587(1)(a), (b) and (c). The Commission was satisfied that the application had no reasonable prospects of success due to the failure of the applicant to respond to correspondence from the Commission. The application was dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.

An order will be issued with this decision dismissing the application for want of prosecution. The dismissal of the application is without any costs order.

Trent Rosewall v Clarkes Design Construction

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established