Daniel Gomes v Minyumai Land Holding Aboriginal Corporation

[2023] FWC 1143

[2023] FWC 1143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Gomes
v

Minyumai Land Holding Aboriginal Corporation

(U2023/2399)

DEPUTY PRESIDENT BOYCE SYDNEY, 15 MAY 2023

Application for an unfair dismissal remedy

Background

1. On 22 March 2023, Mr Daniel Gomes filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). Mr Gomes commenced employment with Minyumai Land Holding Aboriginal Corporation (Respondent) on 19 January 2022 and was dismissed on 3 March 2023.

1. The matter was allocated to my Chambers on 2 May 2023.

1. On 3 May 2023, a notice of listing and directions were issued to the parties, with the matter listed for Hearing to deal with a Small Business Fair Dismissal Code jurisdictional objection and the merits of the matter together on 14 June 2023.

1. On 9 May 2023, the matter was listed for Mention/Directions at 9:00am AEST on 15 May 2023 to deal with a request made by the Respondent to amend the issued Directions.

1. Despite multiple attempts to contact the Applicant and his representative, neither attended the Mention/Directions listed for 15 May 2023. No explanation has been provided to Chambers explaining their non-attendance.

1. At 9:50am AEST later that day, the Applicant was sent an email (Show Cause Email) in the following terms:

“Dear Parties

U2023/2399 - Daniel Gomes v Minyumai Land Holding Aboriginal Corporation

I refer to the matter above and write on behalf of the Deputy President.

Background

On 9 May 2023, the Fair Work Commission issued a Notice of Listing in this matter listing it for Mention/Directions at 9.00am AEST, Monday, 15 May 2023.

Neither the Applicant nor his nominated representative were in attendance and no contact was made prior advising of such non-attendance.

Both the Applicant and his nominated representative were also unable to be contacted by my Associate on the phone numbers provided to the Commission at the time of the listing.

At the listing, the Respondent’s representative also indicated that he had been unsuccessful in making contact with the Applicant and his nominated representative, despite attempting to do so on a number of occasions in the week just past. Neither did he receive any call-back/s.

To date, Chambers has received no explanation for the non-attendance by the Applicant and/or his nominated representative at the Mention/Directions this morning.

Further directions regarding show cause

In view of the foregoing, the Deputy President directs as follows:

[1]  The Applicant and/or his nominated representative is to file with the Commission, and serve on the Respondent, written submissions explaining the Applicant’s non-attendance at the Mention/Directions hearing this morning. Further, the Applicant and/or his nominated representative is to make written submissions as to why this matter ought not be dismissed by the Commission on its own motion having regard to the non-attendance at the Mention/Directions hearing this morning. The Applicant and/or his nominated representative is to comply with this Direction by no later than 4:00pm AEST Today, 15 May 2023.

[2]  If the Applicant does not strictly comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice to the Applicant or his nominated representative.

Yours faithfully

[Associate to Deputy President Boyce]”

1. Chambers received no further correspondence from the Applicant in compliance with Direction [1] or the Show Cause Email.

Legislative Provisions

1. Section 587 of the Act 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.”

1. In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”i

Consideration

1. As the Applicant has made no attempt to comply with the Show Cause Email, and has failed to explain his non-compliance, I have decided to dismiss his Application.

1. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-compliance with directions is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or prosecute his case, and/or contact the Commission to explain his non-compliance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of her own case.

1. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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