Clement Satour
[2024] FWC 2024
•31 JULY 2024
| [2024] FWC 2024 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Clement Satour
(AB2024/397)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 31 JULY 2024 |
Application for an order to stop bullying at work – failure to prosecute – non-compliance with directions – failure to attend - application dismissed
This decision relates to an application for Stop Orders by Mr Clement Satour pursuant to s.789FC of the Fair Work Act 2009 (Cth) (Act) against his former employer, Wood Australia Pty Ltd T/A Wood (the Employer Named/Wood) filed on 31 May 2024. In his Application, Mr Satour alleged that his supervisor engaged in bullying behaviour towards him.
The matter was allocated to me on 25 June 2024, and on 26 June 2024, I listed the matter for a conference on 3 July 2024. The matter could not be resolved during the conference, and I issued directions for the filing of material, the dates for which were discussed with the parties during the conference. The directions included a requirement that Mr Satour file material by no later than 4:00pm (AEST) on 17 July 2024. In issuing the directions, my Chambers provided template documents that the parties could choose to use to assist them in preparing their material. On 5 July 2024, Mr Satour was referred to the Commission’s Workplace Advice Service so that he could request an appointment for legal advice.
Mr Satour failed to file his material as directed. On 24 July 2024, my Chambers wrote to him by email as follows:
“Dear Mr Satour
Directions were issued on 3 July 2024.
Paragraph [3] of the Directions required you to file your material by no later than 4:00pm AEST on 17 July 2024. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 4:00pm AEST on 25 July 2024.
In the absence of any material filed by the Applicant, the matter may be determined without further reference to you, and the Commission will consider dismissing the application pursuant to s.587 of the Fair Work Act 2009, with the application having no reasonable prospects of success for want of prosecution.”
Mr Satour did not respond to this correspondence. On 26 July 2024, my Chambers again wrote to Mr Satour by email:
“Dear Mr Satour
It is noted that we did not receive a response to our correspondence. It is the Deputy President’s current view that your anti-bullying application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.
If you wish to proceed with your anti-bullying application, you must make contact with us by 4:00pm (AEST/QLD) Monday 29 July 2024. If we do not hear from you by that time, your anti-bullying application may be dismissed without further notice to you. You may contact us by email on [email protected].
I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission website.
Alternatively, if you do not wish to proceed with your application you can inform us, by reply email, that you wish to discontinue your application.”
My Chambers also issued an SMS to the Applicant’s mobile number indicating that an important email had been sent and to urgently check his email.
At 5:56am on Monday 29 July 2024, Mr Satour sent an email to my Chambers explaining that he required additional time to get support and legal representation. Mr Satour did not indicate when he would be able to file his material.
That same day, my Chambers wrote to the Applicant informing that the matter would be listed for a non-compliance hearing at 3:00pm AEST the next day. This correspondence indicated that the proceeding would be to determine whether he had failed to prosecute his application and whether it should be dismissed pursuant to s.587 of the Act. A notice of listing was issued indicating that the matter would proceed by video using Microsoft Teams and included instructions on how to attend.
By 3:10pm on 30 July 2024, Mr Satour had failed to join the proceeding. My Chambers issued the following email to Mr Satour:
“Dear Mr Satour
We note that you have failed to appear at the non-compliance hearing today in accordance with both the correspondence and notice of listing issued to you on 29th July 2024.
You should urgently contact Chambers in writing if you are unable to join.
As per the previous correspondence, the proceeding this afternoon is to determine whether your application should be dismissed.
If you do not join the proceeding by 3:30pm, the Deputy President will make a decision about whether to dismiss your matter and may do so without further reference to you.
For your convenience the link to join the hearing is repeated here
…”
A SMS message was also issued to Mr Satour’s mobile number indicating that an important email had been issued to his email address and reminding him of his obligations pursuant to s.592 of the Act.
No response was received from Mr Satour, and he did not attend the hearing by 3:30pm. The Person Named and the Employer attend. During the Hearing, I invited the Employer to make any submissions on behalf of the Employer and Wood informed the Commission that Mr Satour had tendered his resignation earlier that day. I accept that Mr Satour has tendered his resignation from the Employer Named.
Consideration
Section 587 of the Act provides the Commission with the power to dismiss an application on its own initiative or upon application. It relevantly provides 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.
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.”
In considering all the circumstances, I am satisfied that by reason of Mr Satour failing to file any submissions, evidence or documents in support of his anti-bullying application, failing to respond to repeated correspondence from my Chambers and failing to attend the hearing as directed, Mr Satour has, in effect, abandoned his application. Additionally, I note as per paragraph [2], the Applicant was provided with templates to assist him in preparing his material as well as a referral to the Commission’s free legal advice service on 3 and 5 July respectively. In all the circumstances, I conclude that there are no reasonable prospects of its success.
In the alternative, I am satisfied that given the Applicant’s resignation from the Respondent’s employ, the Commission has no jurisdiction to make the orders sought by the Applicant pursuant to s. 789FF(1)(b)(ii) of the Act. It is self-evident that the Commission cannot be satisfied that there is a risk that Mr Satour will continue to be bullied at work by the individual named in his application if he is no longer employed by the Respondent. The application has no reasonable prospects of success.[1] The appropriate course is to dismiss the application under section 587(1)(c) of the Act.
In the circumstances I have decided to dismiss the application on the basis that the application has no reasonable prospects of success pursuant to s.587(3)(a) of the Act.
An order to that effect will issue with this decision.[2]
DEPUTY PRESIDENT
[1] Shaw v Australian and New Zealand Banking Group Limited & Anor [2014] FWC 3408.
[2] PR777700
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