David Benjamin v Impero Pacific Group Pty Ltd
[2023] FWC 1039
•3 MAY 2023
| [2023] FWC 1039 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Benjamin
v
Impero Pacific Group Pty Ltd
(U2023/2710)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 3 MAY 2023 |
Application for an unfair dismissal remedy
Background
On 30 March 2023, Mr David Benjamin 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 Benjamin commenced employment with Impero Pacific Group Pty Ltd (Respondent) on 19 December 2022 and was dismissed on 21 February 2023.
The matter was allocated to my Chambers on 21 April 2023. A notice of listing and directions were issued to the parties later that day, with the matter listed for Hearing to deal with an out of time jurisdictional objection on 15 May 2023 raised by the Commission.
On Friday, 21 April 2023, the parties were sent an email directing the Respondent to file a Form F3 Response by Monday, 24 April 2023.
Chambers received no correspondence from the Respondent in compliance with this direction.
On 26 April 2023, a further email was sent to the parties directing the Respondent to file a Form F3 Response by Thursday, 27 April 2023.
Chambers again received no correspondence from the Respondent in compliance with this direction.
On 28 April 2023, the matter was listed for Mention/Directions on 3 May 2023 to deal with the repeated non-compliance with directions. Later that day, an email was sent to the Applicant requesting legible copies of the attachments to his Application.
Direction [1] of the Directions issued 21 April 2023 read as follows:
“[1] By 4.00pm AEST on Friday, 28 April 2023, the Applicant is to either:
(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.”
Chambers received no correspondence from the Applicant in compliance with Direction [1].
On Monday, 1 May, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further directions for the Applicant to:
“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 1 May 2023.”
Chambers received no further correspondence from the Applicant in compliance with Direction [1] or the Show Cause Email.
Further, despite multiple attempts to contact the parties, neither attended the Mention/Directions listed for 3 May 2023. No explanation has been provided to Chambers explaining their non-attendance.
Legislative Provisions
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.”
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
As the Applicant has made no attempt to comply with the Directions or the Show Cause Email, and has failed to explain his non-compliance, I have decided to dismiss his Application.
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.
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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