Behnam Abedin v UnitingCare Queensland Summary

[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

The Fair Work Commission was presented with an application for an unfair dismissal remedy from Mr Behnam Abedin, who claimed to have been dismissed by UnitingCare Queensland on 2 April 2024. The application, lodged under section 394 of the Fair Work Act 2009, identified UnitingCare Queensland as the employer. However, the Commission raised an administrative query about the correct legal entity of the employer, inviting Mr Abedin to amend his application or respond to the query. Despite multiple communications from the Commission, Mr Abedin failed to respond, leading to concerns about the continuation of his case. The legal issues at hand involved whether Mr Abedin's failure to respond to the Commission's inquiries justified the dismissal of his application under section 587 of the Act.

The Commission considered whether Mr Abedin's inaction amounted to a cessation of his participation in the proceedings. Section 587 of the Act allows for the dismissal of an application if it is not in accordance with the Act, is frivolous or vexatious, lacks reasonable prospects of success, or if the applicant is no longer willing to participate in their own case. Deputy President Easton noted that Mr Abedin had not responded to any of the Commission's correspondence, despite being aware of the potential consequences for his application. The Deputy President concluded that Mr Abedin's failure to respond demonstrated a lack of willingness to pursue his claim, which justified the dismissal of his application. This conclusion was reached in accordance with procedural fairness, ensuring that Mr Abedin was given multiple opportunities to respond to the Commission's queries.

Deputy President Easton dismissed Mr Abedin's application for an unfair dismissal remedy on the basis that it was not being actively pursued by the applicant. The dismissal was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if the applicant is not participating in the proceedings. The Deputy President made an order to this effect, noting that Mr Abedin had not responded to any of the Commission's attempts to contact him. The decision highlighted the importance of addressing administrative queries promptly and the consequences for applicants who fail to engage with the Commission's inquiries. The dismissal serves as a reminder of the need for applicants to actively participate in their proceedings to ensure they are not dismissed for want of prosecution.

Behnam Abedin v UnitingCare Queensland

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established