Behnam Abedin v UnitingCare Queensland
[2024] FWC 1551
•21 JUNE 2024
| [2024] FWC 1551 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Behnam Abedin
v
UnitingCare Queensland
(U2024/4077)
| DEPUTY PRESIDENT EASTON | SYDNEY, 21 JUNE 2024 |
Application for an unfair dismissal remedy
Mr Behnam Abedin was dismissed from his employment on 2 April 2024. On 10 April 2024 Mr Abedin made an unfair dismissal claim under s.394 of the Fair Work Act 2009 (Cth). In his application Mr Abedin named “UnitingCare Queensland” as his former employer.
The legal name nominated by the Respondent in its F3 – Employer’s Response Form was “Uniting Church in Australia Property Trust (Q.) represented by UnitingCare Queensland.”
On 7 May 2024 Commission staff sent correspondence to Mr Abedin raising an administrative query about the legal name of his former employer. The correspondence invited Mr Abedin to ask for an amendment to his application to name a different legal entity as his former employer, or to provide submissions as to why the legal entity he nominated was the correct entity. Mr Abedin was required to respond by 14 May 2024. Mr Abedin did not respond to this correspondence.
Further correspondence was sent to Mr Abedin on 16 May 2024 and he was required to respond by 5:00pm on 21 May 2024. Mr Abedin was also advised that his application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Abedin telling him that an important email had been sent. Mr Abedin did not respond to this correspondence.
Final correspondence was sent to Mr Abedin on 6 June 2024 and he was required to respond by 5:00pm on 12 June 2024. This correspondence reiterated and particularised that the application may be dismissed without further notice if he did not respond. An SMS was also sent to Mr Abedin telling him that an important email had been sent. Mr Abedin did not respond to this correspondence.
To date, Mr Abedin has not responded to any of the Commission’s attempts to contact him.
Section 587 of the 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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).
If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).
In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr Abedin’s application. The Commission’s query about the legal name of the respondent was administrative and should have been resolved very quickly to allow Mr Abedin’s claim to progress.
Mr Abedin has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.
For these reasons I have decided to dismiss Mr Abedin’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.
I have separately made an order to this effect (PR776035).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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