Alexandros Panagiotidis v King Marble Australia Pty Ltd - [2025] FWC 1342

[2025] FWC 1342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 – General protections

Alexandros Panagiotidis
v

King Marble Australia Pty Ltd

(C2025/1435)

COMMISSIONER PERICA

MELBOURNE, 14 MAY 2025

Application to deal with contraventions involving dismissal

On 24 February 2025, Mr. Alexandros Panagiotidis made an application to the Fair Work Commission under s 365 of the Fair Work Act2009 (Cth) (the Act) alleging he was dismissed from his employment with King Marble Australia Pty Ltd (KMA) in contravention of Part 3-1 of the Act.

Procedural history

In his application, Mr. Panagiotidis acknowledges the application was not made within 21 days as required by s 366(1) of the Act. The Commission has power to extend the time for making the application if the Commission is satisfied there are exceptional circumstances under s 366(2).

On 3 April 2025, I conducted a mention in this matter. Mr. Panagiotidis attended that mention by telephone. KMA or any representative for KMA did not appear at this mention. After the mention, I issued directions for the parties to file material on whether an extension of time should be granted and a notice of listing for a determinative conference on 2 May 2025.

Mr. Panagiotidis was due to file his material on Friday, 18 April 2025. No material was received by the Commission.

On 2 May 2025, a determinative conference was to be conducted to hear Mr. Panagiotidis’ extension of time application. Mr. Panagiotidis did not appear. KMA was represented by Mr. Nicholas Mitsios of Sterling Partners as a paid agent. My Chambers attempted to contact Mr. Panagiotidis by telephone, but no response was received.

Subsequently that day, I issued a notice of listing for a further hearing on 14 May 2025 by email. The email noted that Mr. Panagiotidis’ failure to comply with directions to file material and attend meant the application “may be at risk of being dismissed under s 587 of the Fair Work Act 2009”. It further noted that the extension of time application would be heard if all parties were in attendance, otherwise, the proceeding would be conducted as a show cause hearing.

My Chambers attempted to contact Mr. Panagiotidis by telephone on 8 May 2025. No response was received and a voice message was sent advising the time and date of a further proceeding on 14 May 2025. He was also advised to check the email sent on 2 May 2025, noting that he had indicated on his application form that his preferred method of communication was by email.

On 14 May 2025, the Mr. Panagiotidis did not attend the Commission. Mr. Mitsios attended for KMA. The proceeding was conducted as a show cause hearing. KMA applied to have Mr. Panagiotidis’ application dismissed under s 587. At the end of the hearing, I indicated I would dismiss Mr. Panagiotidis’ application and would subsequently publish my reasons.

Relevant Law

Section 587 of the Act provides as follows:
587Dismissing applications
(1) Without limiting when the FWC may dismiss an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexandros Panagiotidis v King Marble Australia Pty Ltd

Details

AGLC: Alexandros Panagiotidis v King Marble Australia Pty Ltd [2025] FWC 1342
Case: [2025] FWC 1342
Decision Date: 14 MAY 2025

CaseChat Overview and Summary

Alexandros Panagiotidis made an application to the Fair Work Commission alleging he was dismissed from his employment with King Marble Australia Pty Ltd in contravention of the Fair Work Act 2009. Panagiotidis did not appear for the first mention, nor did he comply with subsequent directions to file material and attend hearings. King Marble Australia Pty Ltd was represented at the hearings by Nicholas Mitsios of Sterling Partners. The Commission had attempted multiple times to contact Panagiotidis by phone and email, but he did not respond.

The legal issues in this case were whether the Commission could dismiss Panagiotidis' application under section 587 of the Act for failing to comply with procedural requirements and participate in the proceedings. Section 587 allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. However, the Commission cannot dismiss an application made under section 365 solely on the grounds that it is frivolous, vexatious or has no reasonable prospects of success. The Commission must consider fairness, justice, equity and good conscience in determining whether to dismiss the application.

The Commissioner found that Panagiotidis' failure to comply with directions and participate in the proceedings required King Marble Australia Pty Ltd to expend resources in responding to a claim that Panagiotidis did not appear to intend to follow through with. The Commissioner also noted that Panagiotidis had been given ample opportunity to make contact with the Commission but had failed to do so. Applying the principle of a fair go all round to both employers and employees, the Commissioner found the application should be dismissed under section 587.

The Commissioner ordered that Panagiotidis' application be dismissed. An order to this effect was issued in conjunction with the publication of the decision.

Orders