Gopi Awasthi v ANZ Bank

[2020] FWC 5302

[2020] FWC 5302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gopi Awasthi
v
ANZ Bank
(U2020/5118)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 2 OCTOBER 2020

Application for unfair dismissal remedy.

[1] On 18 April 2020, the Fair Work Commission (the Commission) received an application from Mr Gopi Awasthi for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ANZ Bank. Mr Awasthi was represented by Mr Tom Indovino and Mr Jim Stavris of Indovino’s Lawyers.

[2] Mr Awasthi said his dismissal took effect on 31 March 2020 with ANZ Bank asserting that dismissal took effect on 27 March 2020. Accordingly, ANZ Bank raised a jurisdictional objection to the matter on the basis that Mr Awasthi lodged his application more than 21 days after her dismissal took effect.

[3] On 24 June 2020, directions were issued to the parties for the filing of written submissions and supporting material. On 8 July 2020 Mr Indovino advised that he was unable to comply with the directions as Mr Awasthi was medically unfit and he was unable to obtain instructions from his client. On the same day, my Chambers sent an email to Mr Indovino regarding the failure to comply with directions and directing Mr Indovino to obtain a medical certificate from Mr Awasthi to support the claim that he was medically unfit to comply with my directions by 10 July 2020. He was further directed to provide an additional medical certificate that Mr Awasthi was fit to prosecute the case by 5 August 2020.

[4] On 10 July 2020, Mr Indovino advised that he was unable to comply with the direction that a medical certificate be provided with respect to the failure to comply with directions. Mr Indovino also did not provide a medical certificate to support that Mr Awasthi was fit to prosecute the case by 5 August 2020.

[5] On 13 July 2020, my Chambers wrote to Mr Indovino again requesting that the medical certificate of unfitness be provided. This medical certificate was provided on 27 July 2020.

[6] On 12 August 2020, Mr Indovino provided a further medical certificate to the effect that the applicant was medically fit to prosecute the matter and requested that the matter be listed for a directions conference. No contrary medical advice has since then been provided by the applicant.

[7] On 31 August 2020 a directions conference was held, and it was agreed that Mr Awasthi would provide written submissions and evidence by 28 September 2020. Formal directions to that effect were issued on the same day.

[8] On 28 September 2020 the applicant did not comply with the direction to provide written submissions and evidence. My Chambers advised Mr Indovino that these directions were breached. No explanation of the breach was provided. I directed Mr Indovino to provide an explanation for this breach of directions by noon on Wednesday, 30 September 2020. No response was received by this time.

[9] On 30 September 2020, my Chambers wrote to Mr Indovino and advised that if the direction issued on 28 September 2020 was not complied with by noon on Friday, 2 October 2020 an order would be issued dismissing Mr Awasthi’s application for want of prosecution. On the same day, Mr Indovino filed a Form F54 – Notice that a lawyer or paid agent has ceased to act for a person. For the sake of completeness, in my view Mr Indovino is not at fault in this history of continuing breach of directions and has attempted to secure compliance.

[10] To date, Mr Awasthi has not responded to any of the Commission’s correspondence.

[11] Section 587 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.

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.”

[12] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. I add that if the employer had applied as required by s.399A(2) I would have also decided to dismiss the application for breach of directions pursuant to s.399A(1)(b).

[14] An order to this effect is contained in PR723290.

DEPUTY PRESIDENT

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