Arran Sweeney v Amentum Global Services Australia Pty Ltd
[2024] FWC 1083
•24 APRIL 2024
| [2024] FWC 1083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Arran Sweeney
v
Amentum Global Services - Australia Pty Ltd
(C2024/1267)
| COMMISSIONER SCHNEIDER | PERTH, 24 APRIL 2024 |
Application to deal with contraventions involving dismissal
Mr Arran Sweeney (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Amentum Global Services - Australia Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
It appears that the application has been filed outside of the statutory time limit and the Respondent has also objected to the application on such grounds.
This decision deals with the repeated non-compliance of the Applicant in response to the Commission’s directions.
Background – History of the matter
The Applicant was terminated by the Respondent in early January 2024. It appears that, on 5 January 2024, the Applicant was provided a termination letter with an effective termination date of 8 January 2024.
Following his termination, the Applicant lodged an Unfair Dismissal application, pursuant to section 394 of the Act, with the Commission. The following account has been informed by the Commission’s records and the correspondence from the parties to date.
The Unfair Dismissal application was lodged in the afternoon of Thursday 25 January 2024, prior to the public Holiday on Friday 26 January 2024.
On Monday 29 January 2024, the Commission contacted the Applicant regarding issues arising from the information provided in the application. Notably, the Applicant was informed of the prerequisite minimum employment period required for an Unfair Dismissal matter. During this conversation, the Commission referred to the General Protections and the Workplace Advice Service.
The Applicant was provided until 12 February 2024 to demonstrate the minimum employment period was met or to discontinue the application.
The Applicant did not contact the Commission by the date requested.
On 13 February 2024, the Commission unsuccessfully attempted to contact the Applicant and requested an urgent call back, it appears this call was not returned.
On 19 February 2024, the Commission again contacted the Applicant, this time successfully, to clarify his position on the minimum employment period issue. The Applicant confirmed that the minimum employment period was not met and opted to discontinue his Unfair Dismissal application. Again, the Applicant was informed of the General Protections and was provided with a telephone number for legal advice.
Late in the evening of 27 February 2024, the Applicant lodged this General Protections (Dismissal) application with the Commission. On the application form, the Applicant cites incorrect advice provided by the Commission as leading to the delay in filing.
On 6 March 2024, the Applicant emailed the Commission regarding the lateness of the application. In his email, the Applicant places responsibility for the lateness of his filing solely on the Commission. The Applicant claims that the Commission waited until the final day of the 21-day period to contact him regarding the issues in his Unfair Dismissal application and provided no further assistance. Such statement is notably inconsistent with the Commission’s records which reflect that the Applicant was contacted regarding the issues in his Unfair Dismissal application less than one business day following its lodgement. The Applicant requested a reply in a timely manner from the Commission to this email.
Further information regarding the process that was to follow for this General Protections application was sent to the parties later that day, on 6 March 2024, including a telephone call to the Applicant in which the Commission again noted where to find legal advice.
In correspondence sent on 20 March 2024 the Commission again provided information regarding where to find legal help to the Applicant.
Background – Non-Compliance
Correspondence was sent to the parties, on 8 April 2024, outlining that the matter was listed for Hearing on 3 May 2024 to determine the out of time issue. This correspondence included Directions for the parties to file material in support of their respective positions on the out of time issue. The Applicant was directed to file his materials by 19 April 2024.
Nothing was received from the Applicant by the above date.
A follow up letter was sent to the Applicant, on 22 April 2024, regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 23 April 2014.
The letter advised a further failure to comply with the Commission's directions would be grounds for the application to be dismissed.
No materials were received by the deadline above.
Subsequently, I instructed my associate to send the Applicant one final notice to comply.
A final notice was sent to the Applicant on the morning of 23 April 2024 and included a further direction to comply by 8:30AM on 24 April 2024. This correspondence highlighted again that the file was at risk of closure.
A second follow up email was sent to the Applicant, approximately an hour and a half before the final deadline to comply, reminding them of the impending deadline.
Shortly after 8:00AM on 24 April 2024, the Applicant emailed Chambers requesting an extension of two weeks to seek representation.
The extension request was denied, and the following email was issued to the Applicant:
“The Commissioner has declined to grant the extension sought for the following reasons:
· You have been on notice about the requirement to file your materials (by 19 April 2024) since 8 April 2024.
· You did not comply, seek an extension, or contact Chambers prior to the 19 April 2024 deadline.
· You did not comply, seek an extension, or contact Chambers prior to the extended 23 April 2024 deadline.
· You did not comply with the further extended 24 April 2024 deadline.
· You sought an extension less than 30 minutes prior to the further extended 24 April 2024 deadline.
· You have not provided any supporting documentation alongside your extension request.
· You have not provided explanation for why an extension could not be sought earlier.
· The grounds upon which you have sought an extension is to seek representation:
oNoting that this application is approximately two months old, and was preceded by another application before the Commission, you have already had considerable time to seek representation.
oRepresentation is not required to advance a matter before the Commission.
· The extension requested is considerably lengthy in the circumstances.
Accordingly, the Commissioner provides one final opportunity for you to comply with the Directions and Final Notice. If Chambers does not receive the previously requested materials prior to 4:00PM TODAY, 24 April 2024, the Commissioner will move to dismiss the matter.”
The Applicant has not complied with the final direction noted in the quote above.
As of the date and time of this Decision, no further communication from the Applicant has been received.
Legislation
Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.
Section 587of the Act empowers the Commission to dismiss an application, including on its own initiative.
Section 587of the Act reads 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.
(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.”
Consideration
In this case, the Applicant has failed to comply with the Commission’s directions on several occasions and was on notice that non-compliance would be grounds for the application to be dismissed.
The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to the application if they did not.
The Applicant only sought to contact my Chambers regarding the direction to file less than 30 minutes prior to the already twice extended deadline, this being the first and only time.
Assessment of the materials and records before the Commission reflect a pattern of behaviour, being that the Applicant frequently neglects the Commission’s requests for contact or information while simultaneously accusing Commission staff of that exact conduct.
The Applicant has been provided with information regarding the issues in his applications and information to assist in obtaining legal advice, the reason for which the Applicant sought his extension, on several occasions throughout this process.
The Commission has gone to considerable effort to assist the Applicant in advancing his application, but it appears such effort has proved unfruitful as the Applicant will not actively prosecute his application.
The Commission has afforded the Applicant several opportunities to advance their application, despite their repeated non-compliance.
The Applicant has repeatedly failed to comply with the directions of the Commission.
The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.
Conclusion
Consequently, my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act. An Order to this effect will be issued in conjunction with this decision. [1]
COMMISSIONER
[1] [PR774231].
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