Dimitrios Souvan v EG Fuelco (Australia) Ltd
[2022] FWC 3306
•15 DECEMBER 2022
| [2022] FWC 3306 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Dimitrios Souvan
v
EG Fuelco (Australia) Ltd
(C2022/7537)
| DEPUTY PRESIDENT LAKE | BRISBANE, 15 DECEMBER 2022 |
Application to deal with contravention involving dismissal – dismissed pursuant to s.587 of the Fair Work Act 2009
Background
On 14 November, Mr Dimitrios Souvan (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to his dismissal by EG Fuelco (Australia) Ltd (the Respondent). The Applicant did so by filing a Form F8 with the Commission’s Registry. The Applicant’s employment commenced with the Respondent on or around 1 August and was unsure when he dismissed.
On 22 November, the Respondent filed a Form F8A in response, declaring that the Applicant had not filed their application within the statutory timeframe of twenty-one days after dismissal.
On 25 November, the matter was allocated to me.
On 29 November, I issued the following Directions: a hearing on the jurisdictional objection was listed for 2:00pm on 16 December. The Applicant was to file their submissions by 4:00pm on 6 December, and the Respondent was to file their submissions by 4:00pm on 13 December.
The Applicant failed to file any submissions, nor did they contact my Chambers by 6 December.
On 8 November, the Respondent contacted my Chambers with the following:
“Good afternoon,
I note the Applicant was required to submit their outline of submissions for the jurisdictional hearing by 6 December 2022, this has not been completed.
I contacted the Applicant's representative this morning directly seeking further information, and she confirmed that she herself has been unable to make contact with the Applicant.
As such, we are seeking that this application be dismissed for failure to comply with the directions provided.”
On 9 December, my Chambers responded to the parties, noting that the Applicant had failed to comply with the Directions and had not filed submissions. Attached to the correspondence was a copy of the Notice of Listing and Directions issued on 29 November and a blank Form F50.
“Dear parties,
Chambers refers to the Directions that were issued to the parties on Tuesday, 29 November 2022 (attached).
The Applicant failed to comply with the Directions by the date specified in those Directions.
In accordance with paragraph [1] of the Directions, the Applicant was required to file in the Commission, and serve on Respondent, by 4:00pm (QLD Time) on Tuesday, 6 December 2022,
“an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in opposition to the Respondent’s jurisdictional objection”.
As a result of this non-compliance, the Applicant is directed to provide by Monday, 12 December 2022 before 4:00pm (QLD Time):
·explanation and evidence as to why the Applicant failed to comply; and
·all material for the hearing.
Failure to do so will result in the Commission considering dismissal of your application pursuant to section 587 of the Fair Work Act 2009 (Cth).
Applicant, if you do not wish to proceed with the application, you should complete the attached Notice of Discontinuance and forward it to Chambers by Monday, 12 December 2022 before 4:00pm (QLD Time).”
[Emphasis not added]
Since this direction, the Applicant has not communicated with the Commission.
Legislation
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 Symbion Health[1], Commissioner Gooley (as she was then) 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 (c) 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.”
This was affirmed by Vice President Catanzariti in McLeod v Kulgera Trading Company Pty Ltd,[2] and later by Commissioner Platt in Derek Hosback v Programmed Skilled Workforce Limited, PPG Industries Australia Pty Ltd[3] where the Vice President and Commissioner held respectively that s.587 was sufficiently broad enough to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.
Consideration
As the Applicant has not provided submissions for the jurisdictional objection and has failed to provide reasons for failing to comply with the Directions dated 29 November despite the efforts that were made to connect him, 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-participation in the Commission’s processes has already required the Respondent to expend resources in responding to a claim that the Applicant does not seem to have any intention on following through. Further, in taking into account fairness, justice, equity, and good conscience, I find that the Applicant has been given many opportunities to contact the Commission and prosecute his case, but has failed to do so.
Conclusion
While the Respondent has not formally made an application seeking that Mr Souvan’s application be dismissed, I have on my own initiative pursuant to s.587(3)(a) of the Act found that the application should be dismissed for want of prosecution. I order accordingly.
DEPUTY PRESIDENT
[1] [2011] FWA 5458.
[2] [2014] FWC 2112, [10]-[11].
[3] [2021] FWC 6117, [9].
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