David Dikranian v 3one7 Pty Ltd

[2024] FWC 1375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Dikranian
v

3one7 Pty Ltd

(U2024/2428)

DEPUTY PRESIDENT BOYCE

SYDNEY, 27 MAY 2024

Application for an unfair dismissal remedy – failure to comply with Directions – unfair dismissal application dismissed

Overview

On 4 March 2024, Mr David Dikranian (Applicant) 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). The Respondent to the Application is the 3one7 Pty Ltd.

Direction [2] of the Directions issued on 9 May 2024 reads:

“By 4.00pm AEST on Thursday, 23 May 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim..”

The Applicant has not complied with Direction [2].

On 24 May 2024, at 11:22am AEST, the following email (Show Cause Email) was sent to the Applicant:

“Dear Mr Dikranian
Re: U2024/2428 - David Dikranian v 3one7 Pty Ltd
I refer to the matter above.
Background
On 9 May 2024, the Fair Work Commission issued Directions in this matter.
Orders [2] of those directions read as follows:
[2]          By 4.00pm AEST on Thursday, 23 May 2024, the Applicant must file in the Commission and serve upon the Respondent an outline of submissions, witness statements, and any documents in support of her substantive unfair dismissal claim.
To date, Chambers has not received any materials in compliance with Order [2].
Further directions regarding show cause
In view of the foregoing, the Deputy President directs as follows:
[1]          The Applicant is 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, 24 May 2024.
[2]          If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.
Yours faithfully
[Associate]”

Chambers received no correspondence or other communication from the Applicant in relation to the Show Cause Email.

Legislative Provisions

Section 587 of the Act reads:

“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 of the Act:

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

Consideration

As the Applicant has made no attempt to comply with Direction [2] and/or the Show Cause Email, and has failed to contact the Commission or otherwise explain their non-compliance, I have decided to dismiss their Application.

In dismissing the Applicant’s Application, I find that the Applicant’s non-compliance with Direction [2] and the Show Cause Email to be wholly unexplained, and wholly unsatisfactory.

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

Printed by authority of the Commonwealth Government Printer

The case of David Dikranian v 3one7 Pty Ltd was brought before the Fair Work Commission in response to an application by David Dikranian, the Applicant, seeking a remedy for an alleged unfair dismissal. The Respondent to this application is 3one7 Pty Ltd. The matter was heard by Deputy President Boyce in Sydney on 27 May 2024. The primary issue before the court was whether the Applicant's failure to comply with specific procedural directions, including an explicit instruction to file and serve an outline of submissions, witness statements, and supporting documents, warranted the dismissal of his unfair dismissal application. The court also needed to determine if the dismissal was warranted under section 587 of the Fair Work Act 2009.

The Fair Work Commission considered the procedural history of the case, noting that the Applicant had been given a clear direction to submit necessary materials by a specified deadline. Despite this, the Applicant did not comply with the direction and failed to respond to a subsequent show cause email. The Deputy President found the Applicant's non-compliance to be unexplained and unsatisfactory, leading to the conclusion that the application should be dismissed. The Deputy President relied on section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative if it considers the application to be without merit or for want of prosecution. This decision was influenced by the precedent set in Rebecca Tomas v Symbian Health, which confirmed the broad powers of the Commission under section 587 to dismiss applications for reasons beyond those explicitly listed in the Act.

In light of the Applicant's failure to comply with the procedural directions and the show cause email, the Deputy President dismissed the application for unfair dismissal remedy. The dismissal was made pursuant to section 587(3)(a) of the Fair Work Act 2009, as the application was considered to be without reasonable prospects of success and for want of prosecution. An order dismissing the application was published contemporaneously with the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established