Emmanuel Siamani v The Trustee for the Astar Personnel Trust
[2023] FWC 742
•28 MARCH 2023
| [2023] FWC 742 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Emmanuel Siamani
v
The Trustee For The Astar Personnel Trust
(C2022/8636)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 MARCH 2023 |
Application to deal with contraventions involving dismissal – directions and further directions – non-responsive and non-compliant applicant – application dismissed
On 29 December 2022 Mr Emmanuel Siamani (the applicant or Mr Siamani) made an application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (the FW Act) to deal with a dismissal dispute in relation to an alleged dismissal by The Trustee for the Astar Personnel Trust (Astar, the employer or the respondent).
Astar, by response dated 23 January 2023, opposed the application and raised a jurisdictional issue. It claimed that Mr Siamani was not dismissed.
Background
The matter was listed for conciliation before a Commission staff member on Wednesday 8 February 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 11 January 2023 at their nominated email addresses.
On 8 February 2023 a Commission staff conciliator attempted to telephone Mr Siamani three times to commence the conciliation. Mr Siamani did not answer on either occasion. The conciliator then telephoned Ms Joanne Siamani, who was listed as Mr Siamani’s representative in the application. Ms Siamani answered the call and advised the conciliator that Mr Siamani had a new job and was unable to attend the conciliation. Ms Siamani further indicated that she thought the matter had been set down for 15 February 2023.
The conciliation listed on 8 February 2023 ultimately did not take place as a result of Mr Siamani being unable to be contacted on the telephone number he provided.
The matter was then re-listed for conciliation before a Commission staff member on Monday 27 February 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 9 February 2023 at their nominated email addresses.
On 27 February 2023 the conciliator attempted to telephone Mr Siamani once again to commence the conciliation. The conciliator made seven calls to Mr Siamani. Mr Siamani did not answer the conciliator’s calls. After seven calls, the conciliator left a text message to Mr Siamani. The conciliator also attempted to contact Ms Siamani on seven occasions, however Ms Siamani did not answer. Following this, the conciliator telephoned the respondent and advised that the matter could not proceed to conciliation as neither Mr Siamani nor Ms Siamani were answering the conciliator’s calls. The conciliator informed the respondent that if she did not hear back from the applicant that morning, that the matter would proceed to a jurisdictional hearing.
The applicant did not attempt to contact the conciliator following the listed conciliation.
The matter was subsequently allocated to me.
On 17 March 2023 my chambers listed this matter for a directions hearing for 23 March 2023. The Notice of Listing provided:
“• It is your responsibility attend a proceeding, proceedings conducted by telephone or video conference are no exception.
· The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time.
· Parties not attending proceedings risk the matter being dealt with in their absence.”
The Notice of Listing was sent to parties at their nominated email addresses.
On 20 March 2023 I issued Directions directing Mr Siamani to attend the directions hearing listed for 23 March 2023.
The directions hearing took place on 23 March 2023. Two officers of the respondent appeared. No appearance was made by Mr Siamani or any person on his behalf.
Following the directions hearing on 23 March 2023, I issued the following Further Directions:
“Background
[15] Without prior notice or reasonable excuse, the applicant Emmanuel Siamani failed to attend a conciliation conference scheduled by a staff conciliator on 8 February 2023 and 27 February 2023.
[16] On 20 March 2023 the applicant was directed to attend a Directions Hearing listed before me on 23 March 2023 (Directions Hearing).
[17] The directions of 20 March 2023 advised that “compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. This includes the potential for the application to be dismissed on the Commission’s own motion for failure to comply with directions.”
[18] Without prior notice, the applicant failed to attend the Directions Hearing.
Further Direction
[19] The FAIR WORK COMMISSION FURTHER DIRECTS the applicant Emmanuel Siamani to provide to the Commission and to The Trustee For The Astar Personnel Trust by 4:30pm (ACDT) / 4:00pm (AEDT) on Friday 24 March 2023:
· a written explanation for his failure to attend the Directions Hearing on 23 March 2023 as directed.
[20] Should the applicant not comply with these Further Directions or should any explanation provided not be considered sufficient or acceptable to the Commission, my provisional view is that the application will be dismissed of the Commission’s own motion under s 587 of the Fair Work Act 2009 (Cth) without further notice and an Order issued to that effect.
[21] Any enquiries in relation to these further directions should be addressed to my chambers by email at [email protected].
[22] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.”
The Further Directions were sent to the nominated email addresses of each party.
Notwithstanding the Commission’s Further Directions, no communication (written or otherwise) was received by the Commission from Mr Siamani providing an explanation for non-attendance at the directions hearing by 4:30pm (ACDT) on Friday 24 March 2023 or otherwise.
Statutory provisions
Section 587 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.
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.”
Consideration
Mr Siamani has failed to attend proceedings of the Commission including when directed to do so. He has also failed to comply with a direction to provide an explanation for his non-attendance.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the tribunal’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
In Peter Viavattene v Health Care Australia, a full bench stated:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.”[1]
It is a significant step to dismiss an application summarily and, in this matter, without a jurisdictional hearing.[2]
However, Mr Siamani has, for reasons unknown to the Commission, been non-responsive to attempts to progress his application. It is disrespectful to the process Mr Siamani has instituted to not attend proceedings when directed.
Mr Siamani has been put on notice that his application is at risk of being summarily dismissed yet has failed to be responsive to that notification. The Further Directions of 23 March 2023 stated:
“Should the applicant not comply with these Further Directions or should any explanation provided not be considered sufficient or acceptable to the Commission, my provisional view is that the application will be dismissed of the Commission’s own motion under s 587 of the Fair Work Act 2009 (Cth) without further notice and an Order issued to that effect.”
Section 587 contains a general power to dismiss applications summarily. However, as this originating proceeding is an application under s 365, the power to dismiss for reasons set out in ss 587(1)(b) and (c) is not available (see s 587(2)). Nor does s 587(1)(a) apply in this matter.
However, s 587 is not limited to the circumstances set out in ss 587(1) (a), (b) or (c). Section 587(1) is prefaced by the words “without limiting when the FWC may dismiss an application…”.
I am satisfied that the discretion to dismiss Mr Siamani’s application is enlivened under s 587 on the grounds that he has failed to comply with directions of the Commission and is failing to meet minimum obligations required of an applicant in the prosecution of his case.
The Commission is empowered to invoke the powers under s 587 of its own motion (s 587(3)(a)).
There are no reasons not to exercise the discretion to dismiss this application given that reasonable opportunities for compliance have been provided to Mr Siamani.
This, coupled with the prejudice arising to Astar in responding to proceedings that are not being actively prosecuted makes it appropriate to do so.
Conclusion
Mr Siamani’s application is dismissed under s 587(1) of the FW Act on the grounds that he has failed to comply with directions of the Commission and is failing to meet minimum obligations required of an applicant in the prosecution of matter C2022/8636.
An Order[3] to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
[1] [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd [2018] FWC 7814
[2] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017]
FWCFB 5952
[3] PR760654
Printed by authority of the Commonwealth Government Printer
<PR760653>
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