Anapogi Tulua v In Syd Group Pty Ltd

[2018] FWC 4989

[2018] FWC 4989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application For Unfair Dismissal Remedy

Anapogi Tulua
v
In Syd Group Pty Ltd
(U2018/5652)

DEPUTY PRESIDENT BULL SYDNEY, 28 AUGUST 2018

Application for an unfair dismissal remedy – application dismissed for want of prosecution

[1] On 31 May 2018 Mr Anapogi Tulua made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with In Syd Group Pty Ltd (In Syd).

[2] In the Form F2 Unfair Dismissal Application (Form F2) filed by Mr Tulua, he provided a contact mobile number and email address. No alternate contact details were provided by Mr Tulua in the Form F2, nor have any been provided since.

[3] The matter was listed for conciliation before a Commission conciliator on 29 June 2018, however on 27 June 2018 Mr Martin Lantz, Director of In Syd made a request for the matter to be adjourned to a later date. This request was subsequently refused. At the time of the scheduled Mention Mr Lantz was unable to be contacted by the conciliator and the conciliation did not proceed.

[4] Attempts were made to reschedule the conciliation conference however Mr Lantz could not be contacted to make those arrangements.

[5] The matter was allocated to my chambers and was listed for Mention, by telephone, on 19 July 2018. At the time of the Mention, initially neither party could be contacted. However both parties were eventually able to be contacted, after the scheduled listing time.

[6] At the Mention I issued Directions for the parties to file material and set a hearing date of 27 August 2018. My chambers provided these Directions in writing to the parties by email the same day.

[7] On 1 August 2018, Mr Tulua emailed my chambers with an enquiry regarding witnesses attending the hearing. My chambers responded on the same day.

[8] Pursuant to the Directions in the matter, Mr Tulua was to file and serve the material he relied upon in support of his application by no later than 4:00pm on 2 August 2018. No material was received from Mr Tulua.

[9] On 6 August 2018 my chambers wrote to Mr Tulua noting that contrary to the Directions, no material had been received from him by the Commission. The email requested he confirm as soon as possible when he expected to file his material. No response was received from Mr Tulua.

[10] On 9 August 2018 my chambers sent an email to Mr Tulua requesting he advise whether he wished to pursue his application. The email advised Mr Tulua that if no response was received by 4:00pm on 15 August 2018 his application may be dismissed.

[11] Mr Tulua did not respond to the email of 9 August 2018.

[12] Around 4:30pm on 16 August 2018 my chambers attempted to contact Mr Tulua on his mobile number. There was no answer and no option to leave a voice mail.

[13] Two further attempts were made by my chambers to contact Mr Tulua on his mobile number on 17 August 2018. On both occasions the calls did not connect and a notification was received indicating the ‘caller was in another call’.

[14] In Syd has not filed any submissions or witness statements.

Dismissing applications

[15] 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.

(1) 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.

(1) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[16] The words ‘without limiting when the FWC may dismiss an application’ in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in s.587(1)(a), (b) and (c).

[17] The Full Bench in L. Sayer v Melsteel Pty Ltd 1 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

Consideration

[18] Mr Tulua’s only contact with my chambers since the Mention on 19 July 2018 was on 1 August 2018, when he made a procedural enquiry by email. Mr Tulua has not responded to the emails of 6 or 9 August 2018, and has been unable to be contacted by telephone.

[19] Mr Tulua has not complied with the Directions to file material issued on 19 July 2018. No explanation has been provided to the Commission for that failure to comply.

[20] The Commission’s email of 9 August 2018 put Mr Tulua on notice that his application may be dismissed if he failed to contact the Commission to advise whether he wished to pursue his application.

[21] At the listed hearing on Monday 27 August 2018 neither party was in attendance.

[22] Based on the circumstances outlined above, I am satisfied Mr Tulua has failed to prosecute his application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution.

DEPUTY PRESIDENT

 1   [2011] FWAFB 7498 at [19].

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