David Gama v Employment Plus

[2022] FWC 1351

[2022] FWC 1351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

David Gama
v

Employment Plus

(C2022/1996)

DEPUTY PRESIDENT BOYCE SYDNEY, 30 MAY 2022

Application to deal with contraventions involving dismissal

1. On 25 March 2022, Mr David Gama (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections application involving dismissal (Application). Mr Gama commenced employment with Employment Plus (Respondent) on 8 November 2021 and was dismissed on 3 March 2022. I note that the Respondent submits that the Applicant provided the incorrect legal name of the Respondent in his Application, and the correct legal name of the Respondent is The Salvation Army (VIC) Property Trust.[1]

1. The matter was allocated to my Chambers on 12 May 2022. A notice of listing and directions were issued to the parties on the same day, with the matter listed for Hearing to deal with the Application on 14 June 2022.

1. Order [1] of the Directions issued 12 May 2022 reads as follows:

“By 4.00pm AEST on Thursday, 26 May 2022, the Applicant is to either:

·advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

·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.

… Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

1. Chambers received no correspondence from the Applicant in compliance with the foregoing Order.

1. On Friday, 27 May 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further a direction 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, 27 May 2022.”

1. The Applicant was notified in the Show Cause Email that if he does “not comply with [the foregoing direction], or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

Legislative Provisions

1. “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.”

2. 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.”[2]

Consideration

1. As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting his case, or to explain his non-compliance with directions, 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 repeated non-compliance with directions has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to 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 and procedure. I therefore find, pursuant to s.587(3)(a), that the Application should be dismissed for want of prosecution. An Order dismissing the Application will be published with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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[1] Form F8A – Response to general protections form.

[2] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

Printed by authority of the Commonwealth Government Printer

<PR742120>