Adrian Bagay v RPM Food Services Pty Ltd
[2022] FWC 1927
•22 JULY 2022
| [2022] FWC 1927 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrian Bagay
v
RPM Food Services Pty Ltd
(U2022/3697)
| COMMISSIONER HUNT | BRISBANE, 22 JULY 2022 |
Application for an unfair dismissal remedy – applicant shown no willingness to prosecute case – failure to attend the conference – non-compliance with Commission directions – application dismissed.
On 29 March 2022, Mr Adrian Bagay made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed from RPM Food Services Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.
Mr Bagay nominated 22 March 2022 as the effective date of dismissal. In a Form F3 completed by the Respondent, it is accepted that the dismissal date was 22 March 2022. Accordingly, the application has been made within the 21-day time limit prescribed by the Act.
On 31 May 2022, I issued directions requiring the parties to file material by certain dates and notified the parties of a telephone conference to be convened on 16 June 2022.
On 14 June 2022, Mr Bagay sent the following email request to adjourn the 16 June 2022 conference:
“Greetings,
May I humbly ask for a reschedule due to some emergency that I need to finish this week, moving the date from 16th to 22nd of June.
Thank you for understanding.”
I notified the parties that I was listed on 22 June 2022 for a Hearing in another matter but could convene a conference at 4:00pm on 22 June 2022. Mr Bagay and the Respondent advised they could participate in the conference at that time.
On 22 June 2022, Mr Bagay notified of illness within his family, and also said he was experiencing an ear infection. Mr Bagay requested the conference be moved to 14 July 2022.
I informed Mr Bagay that I was not agreeable to moving the conference to 14 July 2022, and questioned Mr Bagay as to why he had not filed his material by 21 June 2022 in accordance with the directions issued on 31 May 2022. Mr Bagay stated that he did not have an email from my chambers dated 31 May 2022.
On 22 June 2022, I caused the directions to be reissued, vacated the directions and requested Mr Bagay to advise how long he would require filing his material. Mr Bagay did not respond.
On 8 July 2022, I issued new directions, requiring Mr Bagay to file his material by 18 July 2022. I informed the parties that if Mr Bagay did not comply with the directions, the matter would be listed for a Non-Compliance Hearing on 21 July 2022.
On 18 July 2022, Mr Bagay sent the following correspondence:
“Greetings,
This day your honor, I would like to ask favor again to move the first conference to 5th of August 2022.
This is to inform the chamber, that I am currently asking for legal advice.
I am taking this case seriously and been preparing for it, but I had to make my decisions and perspectives clearly on this matter.
Thank you and hoping that you understand what is going on to my side.”
The following correspondence was sent from my chambers on 22 July 2022, copying in the Respondent:
“Dear Mr Bagay,
Reference is made to the above matter and your email below.
It is noted that you are seeking an adjournment of the first conference to 5 August 2022. The Commissioner notes however that no conference has been listed for this matter.
Rather, an email was sent on 8 July 2022 where the Commissioner issued Directions, as summarised below:
· The Applicant is to file material in the Fair Work Commission in support of his application, including remedy sought, by no later than 4:00pm (AEST) on Monday, 18 July 2022.
· The Respondent is then required to file material in response to the application, including the remedy sought, by no later than 4:00pm (AEST) on Monday, 8 August 2022.
· Should the Applicant wish to file any material in reply, they are to do so by no later than 10:00am (AEST) on Friday, 19 August 2022.
The Commissioner notes that material, such as an outline of submissions and witness statement(s), are due by you today at 4:00pm. The Commissioner considers that you have had ample time to obtain legal advice and does not accept that you are only now seeking legal advice.
In the event you do not file your material by 4pm today, the matter will be listed for a non-compliance hearing by video using Microsoft Teams at 4:00pm (AEST) on Thursday, 21 July 2022. If the non-compliance hearing occurs you are at risk of having your application dismissed due to not prosecuting your application.”
On 19 July 2022, the following correspondence was sent to the parties:
“Dear Parties,
Reference is made to the above matter. It is noted that no correspondence or materials have been received from the Applicant.
Due to the Applicant’s failure to comply with the Commissioner’s directions for the filing of materials, this matter will be listed for Non-Compliance Hearing, by telephone, at 4:00pm (AEST) on Thursday, 21 July 2022.
Failure to participate in the Non-Compliance Hearing may have consequences for the Applicant’s application. The Commissioner may decide to dismiss the application for want of prosecution, in accordance with s.587 of the Fair Work Act 2009.
The Respondent is also required to attend the Non-Compliance Hearing.”
On 20 July 2022, Mr Bagay sent the following email:
“Hello,
I would like to move this conference on 26th of Tuesday.
Thanks”
On 21 July 2022, the following correspondence was sent to the parties:
“Dear Mr Bagay,
Reference is made to the above matter and your adjournment request below.
The Commissioner is not amenable to granting your request, noting that you have had ample notice of the non-compliance hearing should you not file your material on Monday, 18 July 2022.
Accordingly, the non-compliance hearing will proceed as scheduled at 4:00pm (AEST) on Thursday, 21 July 2022.”
On 21 July 2022, I conducted a telephone Non-Compliance Hearing. Numerous attempts were made by my Associate to contact Mr Bagay, without success. Mr Robert McMullen, Director appeared for the Respondent. I informed Mr McMullen of the numerous attempts made to contact Mr Bagay, without success and indicated my preliminary view was that I would dismiss the application pursuant to s.587 of the Act.
Section 587 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.
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.”
After considering the numerous attempts to engage Mr Bagay in his application to the Commission, including his failure to attend the conference and Non-Compliance Hearing without a reasonable explanation (other than for the family medical matter on 22 June 2022), and his baseless requests for adjournments without any suitable explanation, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. I do so at the Commission’s initiative pursuant to s.587(3)(a) of the Act. Mr Bagay has demonstrated an unwillingness to prosecute his own application and consequently I find that the application has no reasonable prospects of success.
An Order to this effect will be issued with this decision.
COMMISSIONER
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