Ahmed Al Rekabi v Hiflow
[2023] FWC 2903
•3 NOVEMBER 2023
| [2023] FWC 2903 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ahmed Al Rekabi
v
Hiflow
(U2023/8301)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 3 NOVEMBER 2023 |
Application for an unfair dismissal remedy - Application for an unfair dismissal remedy – failure to comply with Directions – Application dismissed
Overview
On 31 August 2023, Mr Ahmed Al Rekabi (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Respondent to the Application is Hiflow Integrated Services Group Pty Ltd.
Direction [2] of the Directions issued on 1 September 2023 reads:
“[2] By 4.00pm AEDT on Wednesday, 1 November 2023, the Applicant must file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of their application.”
The Applicant did not comply with Direction [2].
On 2 November 2023, at 12:39pm AEDT, the following email (Show Cause Email) was sent to the Applicant:
“Dear Mr Al Rekabi
Re: U2023/8301 - Al Rekabi v Hiflow
I refer to the matter above.
Background
On 18 October 2023, the Fair Work Commission issued Directions in this matter.
Orders 2 of those directions read as follows:[2] By 4.00pm AEDT on Wednesday, 1 November 2023, the Applicant must file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of their application.
To date, Chambers has not received any materials in compliance with Order 2.
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1] The Applicant is to file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 2 November 2023.
[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.
Yours faithfully
[Associate]”
The Applicant has made no response to the Show Cause Email.
Legislative Provisions
Section 587 of the Act reads:
“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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Consideration
As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.
In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [2] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
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