Dharmesh Sheth

[2022] FWC 745

[2022] FWC 745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying

Dharmesh Sheth

(SO2022/57)

DEPUTY PRESIDENT YOUNG MELBOURNE, 4 APRIL 2022

Application for an FWC order to stop bullying

1. On 3 February 2022 Mr Dharmesh Sheth (Applicant) made an application for an order to stop bullying under section 789FC of the Fair Work Act 2009 (the Act). The Respondents to the application are Consolidated Property Services (Australia) Pty Ltd, Mr Pandeli Bleta and Mr Chamara Edirisinghe.

1. A preliminary conference with Mr Sheth and a representative of Consolidated Property Services (Australia) Pty Ltd was conducted on 18 March 2022. The application was settled in principle (Settlement) and listed for a further conference on 25 March 2022 (Further Conference) to allow the Applicant time to consider whether there were any other matters he wished to be included in the Settlement.

1. On 21 March 2022 my chambers received a telephone call from Mr Sheth and another individual Mr Sheth identified as a friend. Mr Sheth advised my Associate that he no longer agreed to the Settlement. Further, the individual with Mr Sheth asserted that Mr Sheth required a Gujarati interpreter to attend the Further Conference. Accordingly, on the 22 March 2022 an amended notice of listing was sent to the parties for the Further Conference to be conducted in-person with the assistance of an interpreter. On 24 March 2022 the Commission was made aware that no Gujarati interpreter was available to be allocated for the Further Conference and the Further Conference was rescheduled to 12.00pm on 31 March 2022, subject to the availability of a Gujarati interpreter (Re-scheduled Further Conference).

1. At 9.57pm on 28 March 2022 the Applicant enquired via email as to whether an interpreter was available for the Re-scheduled Further Conference. On 29 March 2022 my chambers emailed the parties advising that the Commission was still waiting confirmation as to the availability of a Gujarati interpreter and that an email would be sent out on the afternoon of 30 March 2022 confirming whether an interpreter had been secured.

1. At 1.34pm on 30 March 2022 an email was sent from my chambers to the parties to confirm that a Gujarati interpreter had been secured and the Re-scheduled Further Conference would proceed as planned.

1. On 31 March 2022 Mr Mark Guinea for the Respondent and a Gujarati interpreter attended the Fair Work Commission prior to the 12.00pm conference, as requested in the notice of listing, to ensure a 12.00pm start. At 11:56am my Associate telephoned the Applicant. The call went straight to voicemail. My Associate telephoned the Applicant again at 12.00 pm and left a voicemail message advising the Applicant that the Respondent representative and interpreter had arrived, the conference was listed to begin at that time and leaving the chambers’ telephone number requesting a return call if the Applicant required assistance. My Associate made two further calls to the Applicant at 12:05pm and 12:15pm, both of which went straight to voicemail. At 12.25pm my Associate made a final call to the Applicant leaving a second voicemail message explaining that the Applicant was late for the Re-scheduled Further Conference and asking the Applicant to call my chambers urgently. The Applicant did not attend the Re-scheduled Further Conference nor did the Applicant make any contact with my chambers. At 12.40pm the interpreter was released from their services due to the Applicant’s failure to attend to Re-scheduled Further Conference.

1. At 3.43pm on 31 March 2022 the parties were emailed by my chambers requesting that by 5.00 pm 1 April 2022 the Applicant provide reasons as to why he did not attend the Re-scheduled Further Conference.

1. As of 3.00 pm on 4 April 2022 no response has been received from the Applicant.

Application dismissed

1. Section 587(1) of the Act provides:

“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.”

1. Notwithstanding written confirmation being provided to the Applicant by my chambers that a Gujarati interpreter had been secured for the Re-scheduled Further Conference, the Applicant failed to attend the Re-scheduled Further Conference. The Applicant did not answer any of the telephone calls made to him by my Associate on 31 March 2022, nor return or acknowledge any of the voice messages left for him by my Associate. Further, the Applicant failed to provide any explanation for his failure to attend the Re-scheduled Further Conference or respond to correspondence from my chambers on 31 March 2022 regarding his non-attendance.

1. The power to dismiss an application under section 587(1) of the Act in not limited to the circumstances set out in subsections (a) – (c). I consider so much is clear from the inclusion of the words “without limiting” in section 587. In all of the circumstances and on the materials before me, I consider that the Applicant has failed to prosecute the Application and that his conduct demonstrates that he does not intend to do so. Accordingly, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

1. The application is dismissed pursuant to section 587(1) of the Act.

DEPUTY PRESIDENT

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