Abdelrahman El Wazni v Metro Trains Melbourne
[2022] FWC 1163
| [2022] FWC 1163 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Abdelrahman El Wazni
v
Metro Trains Melbourne
(U2022/2762)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 13 MAY 2022 |
Application for unfair dismissal – effective date of dismissal and whether application filed out of time in issue – Applicant repeatedly failed to prosecute his case – application dismissed.
On 4 March 2022, Mr Abdelrahman El Wazni made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application, Mr El Wazni said he was notified of his dismissal on 18 January 2022 and that the termination took effect “around” 15 February 2022. He therefore maintained the application was made within 21 calendar days of his dismissal taking effect.
The Respondent to Mr El Wazni’s unfair dismissal application is Metro Trains Melbourne (Metro). In the Form F3 – Employer response to unfair dismissal application, Metro objected to the application on the basis that the application was lodged out of time. Metro contended that Mr El Wazni was notified of his dismissal on 18 January 2022 and the dismissal took effect on the same day.
Failure to attend Telephone Conciliation
On 7 March 2022, a Notice of Listing was sent to the parties scheduling a telephone conciliation before a Commission staff member to take place on 7 April 2022 at 2.15pm. On 31 March 2022, Mr El Wazni sent an email to the Commission seeking confirmation as to whether the telephone conciliation was proceeding on 7 April 2022. On the same day, the Commission confirmed this was the case. At 12.09pm on 7 April 2022, Mr El Wazni sent an email to the Commission querying whether it was possible for the telephone conciliation to be rescheduled. At 12.38pm, the Commission replied advising the request for an adjournment was refused and confirming the telephone conciliation would proceed at 2.15pm. However, the telephone conciliation did not ultimately proceed because Mr El Wazni was not contactable at the appointed time. Mr El Wazni did not respond to follow-up contact from the Commission.
Failure to comply file material in accordance with Directions
On 19 April 2022, the matter was allocated to me. As the effective date of Mr El Wazni’s dismissal was disputed, I issued directions on 20 April 2022 for the filing of material which required the parties to address both the effective date of Mr El Wazni’s dismissal and, if it was determined that the application has been lodged outside the 21-day statutory timeframe, whether or not an extension of time for filing should be granted. Under the Directions, Mr El Wazni was directed to file and serve his material by no later than 3.00pm on Friday 6 May 2022. He had two and a half weeks for this task but he failed to do so. Accordingly, an email was sent by my Chambers to Mr El Wazni at 11.50am on Monday 9 May 2022, seeking his advice as to whether he intended to file any material. Mr El Wazni was asked to indicate his intentions by 3.00pm on Tuesday 10 May 2022. He did not reply.
My Chambers also received an email from Metro on 9 May 2022, in which it requested that Mr El Wazni’s case be dismissed should he fail to file submissions by 3.00pm on 10 May 2022. No response or material was received from Mr El Wazni by the 3.00pm deadline on 10 May 2022 but I caused further correspondence to be sent to Mr El Wazni at 3.59pm directing him to file submissions explaining why he had failed to comply with the Directions and the request for further advice made on 9 May 2022. Mr El Wazni was also directed to file his required materials. It was stated in this email that Mr El Wazni’s response and materials were required by no later than 12.00pm on 11 May 2022 and that if the material was not received, Mr El Wazni’s unfair dismissal application would be dismissed without further notice pursuant to s.587 of the Act.
Mr El Wazni replied by email at 10.26am on 11 May 2022, stating the following:
“Hello all.
The employer has a record of everything, delays, past communications and workplace relation policies since first engagement. Any reasonable justification should be provided by the employer as to why things are the way they are. So far as I’m concerned I’m not interested in going through the trouble to look/search for it. If there are specific deadlines to meet that I may be unaware of, feel FREE to give me a shout as I don’t check my emails regularly. Your hands aren’t tied are they?
Hopefully that makes sense.”
Mr El Wazni failed to comply with the Directions and his response suggested he was not at all interested in putting any material before the Commission or prosecuting his case. Nonetheless, I determined I would proceed with the Hearing on 13 May 2022 and give Mr El Wazni a final opportunity to outline his case.
Failure to participate in Hearing
Even though the hearing was via Microsoft Teams, Mr El Wazni was 15 minutes late. Mr El Wazni did not have his camera on so I asked him to turn it on. Mr El Wazni refused, stating he had not had a shower. I confirmed the Commission was conducting a hearing and that I required the camera on. Mr El Wazni elected not to comply. His responses were to repeat his refusal and demand that certain individuals from Metro attend the hearing. I gave Mr El Wazni a final opportunity to turn on his camera and indicated that if he did not, I would determine the application based on the material before me. Mr El Wazi then asked what that material was. I replied that it did not comprise of much content because he had failed to comply with my Directions. At this point, Mr El Wazni stated “You haven’t had a happy Friday. Alright, thank you very much for your time.”
At this point, I asked Mr El Wazni to confirm that he was not going to turn on his camera to participate and he repeated his demand that certain individuals from Metro attend. I then asked Mr El Wazni whether he intended to proceed with his application and he replied “Why do you think I am here?” When I said “please answer my question”, Mr El Wazni replied “Alright Deputy President, you have a happy Friday, ok? Thank you.” Mr El Wazni then disconnected himself from the Hearing link.
Disposition of the Application
As I stated at the hearing, I can only discern Mr El Wazni does not wish to pursue his application, based on his various responses, failure to answer my questions and refusal to turn on his camera.
Section 587(1) of the Act provides as follows:
“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.
...
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative. The Full Bench of the Commission in Sayer v Melsteel Pty Ltd[1] held that s.587(1) provides for the dismissal of a matter without examining the merits where the applicant has failed to prosecute their case.
Mr El Wazni’s conduct at the Hearing was infantile. He took no responsibility for his obligation to seriously participate in that process to prosecute his case. Mr El Wazni has been given more than a reasonable opportunity to present his case throughout the Commission process. In addition to his puerile performance at the Hearing, Mr El Wazni did not attend the conciliation and nor did he comply with my Directions and file submissions, witness statements or documentation in support of his application. It was Mr El Wazni’s responsibility “to take the best advantage of the opportunity presented”[2] to present his case. He has elected not to do so. In Viavattene v Health Care Australia, it was stated by the Full Bench of the Commission:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” [3]
Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss Mr El Wazni’s application for want of prosecution. An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr A El Wazni on his own behalf.
Ms A McFayden and Ms J Gillam for Metro Trains Melbourne.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
May 13.
[1] [2011] FWAFB 7498 at [19].
[2] Viavattene v Health Care Australia [2013] FWCFB 2532 at [40].
[3] Ibid at [39].
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