Guy Barbagallo v Boart Longyear Australia Pty Ltd

[2018] FWC 5628

[2018] FWC 5628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Guy Barbagallo
v
Boart Longyear Australia Pty Ltd
(U2018/6881)

SENIOR DEPUTY PRESIDENT HAMBERGER MELBOURNE, 7 SEPTEMBER 2018

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.587 – application dismissed.

[1] On 4 July 2018, Mr Guy Barbagallo (the applicant) applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against his former employer, Boart Longyear Australia Pty Ltd (the respondent). The applicant was represented by Rickards Whiteley Lawyers.

[2] On 7 August 2018, I listed this matter for hearing in Orange (and in Adelaide by video link) on 4 and 5 October 2018. I also issued directions for the filing of material. The applicant was directed to file an outline of submissions, witness statements, and any other documentary material in support of his application, by no later than 4:00 pm on 28 August 2018.

[3] By email sent at 2:27 pm on 28 August 2018, Mr Bob Morgan advised that he had carriage of the matter as the applicant’s representative. He made an application to vary the directions to allow the applicant an additional two days in which to file his material; that is, until 4:00 pm on 30 August 2018. He also applied to extend the other directions issued on 7 August 2018.

[4] I agreed to vary the directions to provide the additional two days the applicant sought, and also extended the other directions by two days. My chambers emailed the parties at 5:44 pm on 28 August 2018, confirming the variation and noting that ‘[t]he Applicant’s material in support of his application is now due by no later than 4:00 pm on 30 August 2018.’

[5] My chambers did not receive any material from the applicant by this deadline.

[6] Shortly after 4:00 pm on 30 August 2018, the applicant’s representative telephoned my chambers to advise that he was aware that the applicant had not complied with directions, but he was unable to file any material as he had not been able to contact the applicant for several days and therefore did not have instructions.

[7] At 5:39 pm on 31 August 2018, my chambers received an email from the applicant’s representative which stated [excluding formalities]:

‘Mr Barbagallo has contacted me in the last couple of minutes to advise that he has been unwell at a remote location in the Mt Isa area, and had been unable to attend to matters associated with his case.

He will be finalising his statement which I will then file.

I apologise for the inconvenience.’

[8] My chambers emailed the applicant’s representative at 8:05 am on 4 September 2018, asking when he expected to be able to file the applicant’s submissions and evidence, noting that they were nearly a week overdue, and advising that if the material was filed that day, and all directions were further varied to accommodate the delay, it would still only leave two days before the hearing. The applicant’s representative was also apprised of the difficulty in securing a new hearing date in a regional courthouse.

[9] At 1:39 pm on 4 September 2018, the applicant’s representative emailed my chambers stating [excluding formalities]:

‘I am waiting for Mr Barbagallo to provide me with his signed statement for filing.

I have discussed the need to have the material filed, and have been expecting a signed statement to have been provided since Saturday, however he seems to have technology problems at his current remote workplace in the Mt Isa region.

I have forwarded the advice that Senior Deputy President Hamberger’s office has been in contact, and the significance of that contact.’

[10] My chambers replied at 2:09 pm on the same day, confirming that the correspondence had been brought to my attention, and further that:

‘… the applicant is in breach of the Senior Deputy President’s directions, and we have no definitive indication of when he will comply. His Honour is accordingly considering dismissing Mr Barbagallo’s application.

The Senior Deputy President directs Mr Barbagallo to explain by 4:00 pm tomorrow, Wednesday 5 September 2018 why his application should not be dismissed. If his Honour receives no response, or the response is unsatisfactory, the application may be dismissed without further notice.’

[11] The applicant’s representative replied at 6:15 am on 5 September 2018, confirming that chambers’ 2:09 pm email had been forwarded to the applicant, and that he was awaiting advice from him.

[12] The applicant’s representative sent a further email at 2:22 pm, which stated [excluding formalities]:

‘I acknowledge receipt of your email most recent email which I have forwarded to Mr Barbagalo [sic], and had also advised him by SMS text message that this[sic] previous emails had been sent, and an outline of the contents.

I have not received a response as yet, and assume it is because of IT technology difficulties at the remote location at which he is working in the Mt Isa region.’

[13] As of today, I have not received anything further from the applicant or his representative.

Consideration

[14] Section 587 of the Act states:

‘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.’

[15] Pursuant to s.587(1) of the Act, the power of the Commission to dismiss an application is broad, and is not limited to the circumstances set out in ss.587(1)(a), (b) and (c).

[16] It is clear that the applicant has failed to comply with my direction to file relevant material by 4:00 pm on 30 August 2018. To date, no material has been filed and there is no indication of when it will be filed.

[17] I also have not received a satisfactory response to my direction that that the applicant explain why his application should not be dismissed.

[18] Accordingly, I have decided to dismiss the application on the basis that the applicant has failed to comply with a direction of the Commission.

SENIOR DEPUTY PRESIDENT

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