Dimitrios Souvan v Cocoa Bean Enterprises Pty Ltd

[2023] FWC 1412

[2023] FWC 1412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Dimitrios Souvan
v

Cocoa Bean Enterprises Pty Ltd

(C2023/1857)

COMMISSIONER BISSETT MELBOURNE, 19 JUNE 2023

Application to deal with contraventions involving dismissal

1. On 31 March 2023 Mr Dimistrios Souvan made an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) in which he claimed that his employment had been terminated in breach of the general protection provisions in Part 3-1 of the FW Act.

1. For the reasons that follow, the application is dismissed.

Background

1. The application was listed for conciliation before a staff conciliator on 8 May 2023. The conciliation could not take place as, despite five attempts to contact him on his nominated telephone number, Mr Souvan failed to answer his telephone. Messages were left for Mr Souvan but he failed to contact the conciliator to enable the conciliation to occur.

1. Cocoa Bean Enterprise Pty Ltd (Respondent) filed its response to the application on 8 May 2023 in which it raised an objection to the application as it claimed the application had been made outside of the 21 day time limit for making such an application.

1. The file was allocated to me to deal with the issue of an extension of time. Given his non-attendance at the conciliation and failure to contact the Commission despite messages left for him, my chambers wrote to Mr Souvan on 15 May 2023 and asked him to confirm if he wished to continue with his application. Mr Souvan failed to respond to this email.

1. On 17 May 2023, on the basis of my request, the Respondent wrote to the Commission and provided advice of start and end dates of Mr Souvan’s employment.

1. Mr Souvan’s application was listed for a mention and directions on 24 May 2023. Mr Souvan failed to advise if he would be in attendance. After two unsuccessful attempts to contact him at the designated time Mr Souvan answered his telephone. He advised my associate that he had not received the employer response to his application which was why he had not attended the conciliation and that he wished to continue with his application. Mr Souvan then abruptly disconnected the call prior to being put through to the directions conference.

1. On 25 May 2023, given Mr Souvan’s very limited engagement in the process in relation to his application, I caused an email to be sent to him and again sought his confirmation that he wished to pursue his application. Mr Souvan was informed that if he failed to respond to the correspondence his application may be dismissed by decision.

1. Mr Souvan again failed to respond. On 30 May 2023 a further email was sent to him reminding him of the need to respond and the consequences of not responding to the email.

1. A further email was sent to Mr Souvan on 5 June 2023. That email asked Mr Souvan for any submissions as to why his application should not be dismissed given his failure to engage in the process and to confirm  that he intended to continue with his application. Mr Souvan was asked to provide any submissions on this question by 9 June 2023 to respond. Mr Souvan has not responded to that email.

Consideration

1. Section 587 sets out when the Commission may dismiss an application. it 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 prospect of success.

1. The Commission is not limited by s.587(1) as to the grounds to which it might consider dismissing an application, the only limitation being that, as this is an application under s.365 of the FW Act the Commission must not dismiss the application for a reason prohibited by s.365(2). Further, it is clear that such a dismissal may be considered on the initiative of the Commission.

1. In this case Mr Souvan has failed to engage in any part of the process in relation to his application beyond the making of the application. In the one, brief, encounter with Mr Souvan he indicated that he wished to pursue his application but then failed to attend the mention and directions hearing and failed to respond to any written correspondence from the Commission. Mr Souvan has otherwise been given multiple opportunities to indicate if he wished to pursue his application. He was also advised how he could discontinue his application if he no longer wished to continue.

1. The Commission is required to perform its functions in a way that is fair and just, and quick and informal. Mr Souvan’s failure to engage in the prosecution of his claim, despite all attempts to allow him to do so has resulted in a 3 month process with no outcome in that time and no progress in the foreseeable future. Further, Mr Souvan has given no indication in action or words that he intends to engage with the process he commenced and pursue his application. The process has not been quick and the ongoing delays unfair on other parties involved.

1. In these circumstances I consider it appropriate to exercise my discretion to dismiss the application of Mr Souvan in accordance with s.587(1) of the FW Act. I do so as Mr Souvan has unreasonably refused to engage with the Commission in relation to his application and I do not consider that he will do so in the future.

1. The application is therefore dismissed.

COMMISSIONER
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