Application by Mr Dominique Almanon
[2022] FWC 1772
•29 JULY 2022
| [2022] FWC 1772 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Application by Mr Dominique Almanon
(SO2022/241)
| DEPUTY PRESIDENT BINET | PERTH, 29 JULY 2022 |
Application for an FWC order to stop bullying
On 21 May 2022, Mr Dominique Almanon (Mr Almanon) filed an application (Application) with the Fair Work Commission (FWC) for an order to stop bullying in accordance with section 789FC of the Fair Work Act 2009 (Cth) (FW Act).
Mr Almanon is employed by H-E Parts Engineering Pty Ltd (H-E Parts). His Application alleges that an employee of H-E Parts had engaged in bullying behaviour towards him (Named Person).
On 27 May 2022 H-E Parts filed a response to the Application denying the allegations. On 9 June 2022 the Named Person filed a response to the Application also denying the allegations.
On 15 June 2022 the parties attended a conciliation conference before me, where the matter was unable to be resolved. Mr Almanon was advised that Directions would be issued to the Parties and that if Mr Almanon did not file his materials pursuant to the Directions the Application may be dismissed pursuant to section 587 of the FW Act.
Directions were issued to the parties on 22 June 2022 (Directions). The Directions required Mr Almanon to file an outline of submissions, his evidence and any authorities upon which he relied by 4pm (AWST) on Thursday 30 June 2022. The Directions stated that compliance with the Directions was mandatory.
Mr Almanon failed to file any materials by 4pm on Thursday 30 June 2022 in accordance with the Directions.
On 1 July 2022 Chambers wrote to Mr Almanon noting that he had failed to meet the deadline for filing his materials. Chambers informed Mr Almanon that in the absence of him filing any materials in accordance with the Directions the Deputy President proposed to dismiss his application pursuant to section 587 of the Fair Work Act. Chambers advised Mr Almanon that he was invited to make submissions providing reasons as to why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons by 4pm (AWST) Monday 4 July 2022. Mr Almanon was also advised that if he did not make submissions by 4pm (AWST) Monday 4 July 2022 his application would be dismissed.
Mr Almanon failed to file his material by 4pm (AWST) 4 July 2022, or since.
Consideration
Section 587 of the FW Act provides:
“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.”
The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities.[1]
The power to dismiss a substantive application should only be exercised cautiously and sparingly.[2]
In Mcleod v Kulgera Trading Company Pty Ltd,[3] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.
In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[4] in which she stated:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.”
In a number of cases since the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.[5]
Mr Almanon was advised at the conference which was held on 21 July 2021 that if the matter proceeded to Hearing he would be required to file materials within seven days of the Directions being issued.
The Directions set out clearly what he was required to file and when. He was also provided with access to materials to assist him prepare his materials or to obtain assistance to prepare his materials.
There is no medical evidence before me to suggest that Mr Almanon is unable to prepare his materials or provide instructions to a representative to prepare them on his behalf.
As at the date of this decision Mr Almanon has filed nothing.
It is a precondition to the granting of any order under s.789FF of the FW Act that the FWC must be satisfied of two matters. The first matter is that the worker has been bullied at work by an individual or group of individuals and the second is that there is a risk that the worker will continue to be bullied at work by the individual or group.
The only material that I have from Mr Almanon is the completed Form F72. As it stands, there is no evidence currently before me on which I could be satisfied that either of the two necessary circumstances exist and no likelihood that there will be such evidence if the Hearing were to proceed.
Mr Almanon has identified no prejudice to him if the Application is dismissed. If behaviours occur which might form the basis of the granting of orders then he can make a new application at that time.
I therefore dismiss the Application pursuant to section 587 of the FW Act for the reasons set out above. An Order to this effect will be issued with this decision. [6]
DEPUTY PRESIDENT
[1] Section 577 of the FW Act
[2] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.
[3] [2014] FWC 2112.
[4] [2011] FWA 5458.
[5] See for example: Application by Monserrarah Duke [2021] FWC 5319, Application by Hang Li [2021] FWC 5348
[6] PR743568.
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