Arnaud M. Waasdorp v ATG Australian Transit Group
[2024] FWC 2217
•20 AUGUST 2024
| [2024] FWC 2217 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Arnaud M. Waasdorp
v
ATG Australian Transit Group
(U2024/7104)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 AUGUST 2024 |
Application for an unfair dismissal remedy
On 20 June 2024, the Commission received an application from Mr Arnaud M. Waasdorp (the Applicant) asserting he had been unfairly dismissed by ATG Australian Transit Group (the Respondent).
The application was referred to my Chambers on 18 July 2024 and on that same date directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by 1600hrs on Tuesday, 23 July 2024.
The Applicant complied with the First Directions and provided what he referred to as ‘Submissions’ with several attachments. Thereafter, further directions issued on 25 July 2024 requiring the parties to file written submissions, witness statements, a document list and any materials the parties wished to rely upon. The Applicant was required to file his materials by 1600hrs on 8 August 2024 (Second Directions). Further, the parties were informed at this time that a conciliation conference would be conducted by telephone on 29 July 2024. However, on 26 July 2024, the Commission was advised that the interpreter booked for the conciliation conference was no longer available and therefore the parties were informed that the conciliation conference was vacated.
On 29 July 2024 the Applicant emailed Chambers noting that he had requested the Respondent to produce certain documents to no avail. On 31 July 2024, Chambers emailed the parties noting that it had received an email from the Applicant that the Respondent had not been copied to, and that it was unclear why the Applicant had sent the email to Chambers. The Applicant was informed that if he sought the production of documents, he would need to submit a Form F52 (a link was provided to the relevant form).
On 1 August 2024, Chambers received a Form F52 from the Applicant, but it was unclear from the Applicant’s form what documents, records or information he was seeking to have produced by the Respondent. The only information recorded in the Form F52 was the following:
(FWC) Workplace Advice Service Request form
(U2024/7104). Informing a Workplace Advice Service Request has been send [SIC] to Fair Work Commission. 01-08-2024 12:39.
Chambers issued an email to the parties on 1 August 2024 noting that if the Applicant was seeking the production of certain documents, he was to file an amended Form F52.
The Applicant was non-compliant with the Second Directions and therefore on 9 August 2024 an email issued to the parties alerting the Applicant to his non-compliance with the Second Directions. In addition to emailing the Applicant about his non-compliance, on that same day Chambers attempted to call the Applicant three times. A voice message was left referring to the matter number and requesting that the Applicant please contact Chambers as a matter of urgency. A further voicemail was left on that same date explaining to the Applicant that Chambers was calling in relation to the Applicant’s non-compliance with the Second Directions and that an email had been sent to him on 9 August 2024. The Applicant was asked to read his emails and respond as soon as possible.
On 13 August 2024, Chambers called the Applicant twice and having received no answer Chambers left a voicemail – stating that it was a call from the Commission in relation to the Applicant’s matter and his non-compliance with the Second Directions.
On 14 August 2024, the parties were informed that in light of the Applicant’s failure to provide a reason for his earlier non-compliance with the Second Directions and to seek an extension of time in which to provide his materials by the deadline, the matter was now listed for a hearing concerning the potential dismissal of the Applicant’s unfair dismissal application pursuant to s 587 of the Act (Third Directions). The Applicant was required to file materials as to why his application should not be dismissed by 1600hrs on 16 August 2024. The Applicant was called twice on 16 August 2024, with a voicemail again being left for the Applicant to contact Chambers immediately regarding his application. The Applicant was non-compliant with the Third Directions.
In short, the Applicant has failed to respond to the Second and Third Directions and the multiple voicemails that have been left by Chambers to call Chambers as a matter of urgency.
The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[1]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[2] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[3]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Whilst aware that the Applicant speaks English as a second language, it is also the case that in his former position with the Respondent he was required to drive buses. I therefore consider it safe to presume that the Applicant was able to understand the content of voicemails that had asked him to contact Chambers as a matter of urgency. At any time over the course of the last eleven days it was open to the Applicant to call Chambers and request assistance or at least respond to the voicemails left.
Since 8 August 2024, the Applicant has been non-compliant with the Second and Third Directions. This is notwithstanding the allocation of the Commission’s resources to assist him with his unfair dismissal application, including emails and telephone calls to remind the Applicant to promptly file the materials necessary to pursue his case or to respond to the potential dismissal of his unfair dismissal application. The Applicant’s non-compliance with the Second and Third Directions and lack of response to written and verbal communication from Chambers have led me to this conclusion. Ultimately, it is not the Commission’s responsibility to assist a party to run her or his case.
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, his application is dismissed pursuant to s 587(1)(c).
An Order[4] to this effect is issued concurrently.
It is noted that whilst the Applicant brought his unfair dismissal application against ATG Australian Transit Group, in its Form F3 the Respondent identified that the former employer of the Applicant was South West Transit Group Pty Ltd. In his ‘Submissions’ of 23 July 2024, the Applicant said that to his knowledge ATG Australian Transit Group was the parent company and that South West Transit Group Pty Ltd formed part of ATG Australian Transit Group. Thereafter, the Applicant referred to having been employed and having had his employment terminated by South West Transit Group Pty Ltd and ATG Australian Transit Group. In the absence of further submissions and evidence concerning the correct identification of the former employer, I have elected not to amend the name of the Respondent in these circumstances.
DEPUTY PRESIDENT
Appearances:
Hearing details:
Final written submissions:
[1] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[2] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[3] Ibid.
[4] PR778513.
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