Darren Boag v Probe Management T/A Probe Contact Centres Australia
[2023] FWC 2364
•19 OCTOBER 2023
| [2023] FWC 2364 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements
Darren Boag
v
Probe Management T/A Probe Contact Centres Australia
(C2023/4327)
| COMMISSIONER YILMAZ | MELBOURNE, 19 OCTOBER 2023 |
Application to deal with a flexible working arrangement dispute under an agreement - application dismissed
Introduction
On 21 July 2023, the Applicant, Mr Darren Boag lodged an application under clause 34 of the Salmat Contact Enterprise Agreement (VIC) (the Agreement) pursuant to s.739 of the Fair Work Act 2009 (the Act) alleging Probe Management T/A Probe Contact Centres Australia (the Respondent) failed to follow the correct procedures in the Agreement in relation to his request for flexible working arrangements.
Mr Boag additionally lodged a separate application for general protections not involving dismissal under s.372 of the Act on 27 July 2023 (the General Protections application). The Respondent filed a Form F8A advising they did not consent to a conference. I therefore advised the parties that the Commission could not proceed with a conciliation conference and the file for that matter was subsequently closed.
Factual Background
On 8 August 2023, my chambers was allocated both of Mr Boag’s matters. On 18 August 2023, my chambers sent out an email to the parties requesting the Respondent to file a Form F8A in response to the General protections application. On 1 September 2023, my chambers followed up the Respondent, again requesting it to file a Form F8A.
On 4 September 2023, my chambers received an email from the Respondent providing a Form F8A and attached a Deed of Release signed by Mr Boag and the Respondent. In the Form F8A the Respondent states that Mr Boag no longer worked for them and that he voluntarily resigned on 17 February 2023. The Deed of Release confirms at clause C that the employment relationship would come to an end due to voluntary resignation. Additionally, clause 5 of the Deed releases the Respondent ‘from all actions, suits, claims, demands, rights, costs and other liabilities arising from the Employment, the Restructure, the Redundant position and the Termination….’ and confirms that the ‘deed is a bar to any such claims.’
On 5 September 2023 at 4:30pm my chambers sent out an email confirming that the General protections application would be closed and requesting Mr Boag confirm whether he wished to continue with this Application. At 9:40pm, the Mr Boag confirmed he wished to continue with his application. The following day my chambers emailed the parties listing the matter for directions hearing on Tuesday 12 September 2023.
On 12 September 2023, my chambers conducted a directions hearing via Microsoft Teams, the Respondent was in attendance. My chambers made 3 attempts to call Mr Boag however the call could not be connected. My chambers also sent Mr Boag an email advising him that I was waiting for him to join the hearing, however he did not attend. Following the hearing, my chambers sent an email to Mr Boag advising him that I was of the view that his Application should be dismissed and providing him until 4pm 13 September 2023 to provide reasons why his application should not be dismissed.
The Legislation
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.”
Section 739 of the Act provides as follows:
“739 Disputes dealt with by the FWC
(1)This section applies if a term referred to in section 738 requires or
allows the FWC to deal with a dispute.
(2)In dealing with a dispute, the FWC must not exercise any powers
limited by the term.
(3)If, in accordance with the term, the parties have agreed that the FWC
may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(4)Despite subsection (4), the FWC must not make a decision that is
inconsistent with this Act, or a fair work instrument that applies to the parties.
(5)The FWC may deal with a dispute only on application by a party to the
dispute.”
Consideration
Jurisdiction under the Agreement and the Fair Work Act 2009
The Commission can only deal with a dispute if it is empowered through an industrial instrument or the Act provides for the power. The application seeks a flexible working arrangement; however, Mr Boag was not an employee when he filed the application. On this basis a dispute about the implementation of a flexible working arrangements has no reasonable practical prospect of success. The Act as it applied during Mr Boag’s employment further limited the Commission’s powers in terms of disputes about whether an employer had reasonable business grounds in relation to flexible working arrangements.[1]
Mr Boag’s employment came to an end on 17 February 2023, and this Application was made on 21 July 2023. I note that a dispute can only be lodged by an employee covered by the industrial instrument. While Mr Boag states that he is covered by the Agreement, in fact he is no longer an employee and consequentially not covered by the Agreement. Additionally, he was not covered by the Agreement when he lodged the Application.
Clause 3 of the Agreement explicitly states that it covers “Employees employed at the Enterprise” and in that context employees may use clause 34 which outlines the procedure for resolving disputes and grievances by employees.
Further, the Agreement at clause 34(h) explicitly excludes disputes about “reasonable business grounds under section 65(5) of the Fair Work Act to refuse a flexible working arrangement”. I observe that Mr Boag’s dispute about flexible working arrangements will not result in any reasonable practical outcome given he is not a current employee nor an employee at the time that he made the application and the limitations of the Act in regards to this application are further considerations.
Limitations of the Deed of Release
I now turn to the Deed of Release submitted by the Respondent. I note that the Deed was signed on 17 February 2023 by both parties. The Deed makes it very clear that it resolves all matters between the parties, in clause 5 it specifically releases the Respondent ‘from all actions, suits, claims, demands, rights, costs and other liabilities arising from the Employment, the Restructure, the Redundant position and the Termination….’ and that the parties to the Deed agree that the ‘deed is a bar to any such claims.’
In an email from Mr Boag, he states that he did not ‘wave [his] rights to general protections related to prospective employment with [the Respondent].’[2] However, the evidence of the Deed contests this position. The Deed makes it clear that any entitlement that Mr Boag has to make a dispute application regarding his employment or termination of employment from the Respondent has been waived by signing the Deed. While Mr Boag may regret signing the Deed or subsequently have formed a different view it is clear that the Deed is intended to protect the Respondent from any action by Mr Boag in relation to his employment with the Respondent.
Procedural deficiencies
While Mr Boag elected to continue with this Application twice, first on 27 July 2023[3] to Deputy President Clancy and then again to myself on 5 September 2023, it is clear he has failed to prosecute his case.
Mr Boag failed to attend the directions hearing, respond to communication from the Commission, provide reasons why his Application should not be dismissed nor explain why he failed to attend the directions hearing, I am satisfied that his Application should be dismissed. I further confirm that at the time of writing this decision, Mr Boag has failed to engage with the Commission in relation to this application in any form.
At the commencement of section 587 of the Act, the words “without limiting when FWC may dismiss an application” means that the Commission has jurisdiction to dismiss applications on grounds that that are not contained in ss. 587(1) (a), (b) and (c).
In this instance Mr Boag has not attended the directions hearing. My chambers have made numerous attempts to contact him. From this, I am also satisfied that Mr Boag was put on notice of the risk that failure to contact the Commission may result in his matter being dismissed.
Conclusion
As Mr Boag has filed an Application that appears to lack jurisdiction, both as he is no longer is an employee of the Respondent and as he has signed a Deed of Release barring him from an application of this nature, as well as failing to properly prosecute his application, I am satisfied that this application ought be dismissed.
The application is dismissed for want of prosecution and on the basis that the application has no reasonable prospects of success pursuant to s.587(3) of the Act.
An order[4] to that effect will be issued with this decision.
COMMISSIONER
[1] see reference s.739 (2) referencing s.65(5) Fair Work Act 2009.
[2] Email received 5 September 2023 at 9:40pm.
[3] Email sent from Mr Boag.
[4] PR766220.
Printed by authority of the Commonwealth Government Printer
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