Guy Rosa v Gumnut House Pty Ltd
[2024] FWC 1633
•24 JUNE 2024
| [2024] FWC 1633 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Guy Rosa
v
Gumnut House Pty Ltd
(C2023/6997)
| COMMISSIONER HUNT | BRISBANE, 24 JUNE 2024 |
Application to deal with contraventions involving dismissal
On 10 November 2023, Mr Guy Rosa made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by Gumnut House Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.
Mr Rosa was represented by agent, Employee Dismissals.
In the Form F8A – Employer Response, the Respondent objected to the application on the jurisdictional grounds that Mr Rosa was not dismissed by the Respondent. I issued directions to the parties requiring them to file materials in relation to the Respondent’s jurisdictional objection, with a case management conference listed on 15 January 2024. The directions required Mr Rosa’s material due first on 29 January 2024.
At the case management conference, Mr Rosa was uncontactable but was represented by Employee Dismissals.
On 29 January 2024, Employee Dismissals filed a Form F54 – Notice of Representation Ceasing to Act. No material was filed by Mr Rosa, or by his representative, that day.
I caused my chambers to send correspondence to Mr Rosa on 30 January 2024, providing a copy of the Form F54 from Employee Dismissals, and enquired why Mr Rosa had not filed his material by the due date. I had given Mr Rosa until 31 January 2024 to provide a response. I did not hear from Mr Rosa. As a result, I caused my chambers to send the following correspondence to Mr Rosa’s elected email on 5 February 2024:
“Dear Parties,
Reference is made to the above matter.
As per Chamber’s email below on 30 January 2024, Mr Rosa was requested to advise why material was not filed by 4:00pm (AEST) on Wednesday, 31 January 2024.
I confirm the Commission is not in receipt of any response from Mr Rosa.
Mr Rosa is directed to respond to this email as to why he has not filed his material in accordance with the Commissioner’s direction by 4:00pm (QLD Time) on Tuesday, 6 February 2024.
In the event Mr Rosa does not respond to this email or file his material by 4:00pm tomorrow, the matter will be listed for a non-compliance hearing at 9:00am (QLD Time) on Thursday, 8 February 2024.
If the non-compliance hearing occurs, Mr Rosa will be required to give evidence as to why he has not complied with the Commission’s directions to file material in his application. If Mr Rosa fails to attend, or his explanation is not satisfactory, the Commissioner may dismiss the application pursuant to s.587 of the Fair Work Act 2009 for non-compliance and for want of prosecution.”
I did not hear back from Mr Rosa, and I ultimately listed the matter for a non-compliance hearing on 8 February 2024 by telephone.
Mr Rosa did not attend the non-compliance hearing. My Associate attempted to call Mr Rosa on several occasions, however on each occasion, the call went straight to voicemail. At the hearing, I enquired from the Respondent as to whether they had an alternative contact number for Mr Rosa.
Following the hearing, the Respondent’s representative, Mr Colin Dorber of Employer Protect confirmed, by email correspondence, that the Respondent has on file Mr Rosa’s brother, Luke, as an emergency contact. Mr Dorber spoke with Luke and learnt that Mr Rosa did not have a telephone for approximately three weeks, ultimately losing access to his email. Mr Rosa later contacted Mr Dorber through his brother’s mobile. Mr Dorber requested the Commission convene a further conference between the parties.
Given the history of the matter, I considered it appropriate to list the matter for a Directions Hearing on 23 February 2024. As such, I caused my chambers to send the following correspondence to the parties and Mr Rosa’s updated email address:
“Dear Parties,
Reference is made to the above matter which has been allocated to Commissioner Hunt. All further correspondence directed to the Fair Work Commission (the Commission) in respect of this matter is to be sent to Commissioner Hunt’s chambers at the contact details below, copying in the other parties to this matter.
The Commissioner appreciates the Respondent’s assistance in this matter in contacting the Applicant’s brother and obtaining the Applicant’s new contact details.
The Commissioner is aware that the Applicant’s representative no longer represents him. The Commission has unsuccessfully been attempting to contact the Applicant to progress the application. Progressing the application to hearing requires all of the parties to prepare material so that on the day of the hearing, it is efficiently run, and each party knows the other party’s case.
Now that the Commission is aware of up-to-date contact details of the Applicant, the Commissioner considers it appropriate to list the matter for a Directions Hearing, by telephone, at 11:30am (Qld Time) on Friday, 23 February 2024. A notice of listing is to follow.
The Applicant is referred to the attached Form F54 filed by Employee Dismissal’s for his attention.
The Applicant is directed to reply to this email and confirm his attendance at the Directions Hearing on 23 February 2024.”
Mr Rosa responded the following day, confirming he will be in attendance.
At the conference, Mr Rosa was given time to decide how he would like to progress with his application prior to fresh directions being issued. It was noted that Mr Rosa would likely lose an ability to communicate by email for the reasons of being itinerant and, it would seem, without a mobile phone. On 23 February 2024, Mr Dorber provided an update to my chambers.
On 1 May 2024, I caused my chambers to seek an update from Mr Dorber. As a result, Mr Dorber sent correspondence to Mr Rosa.
On 21 June 2024, my Associate attempted to contact Mr Rosa on his mobile number without success. My Associate further attempted to contact Mr Rosa’s brother, Luke, however the line was busy. Neither Mr Rosa nor Luke have made contact with my chambers.
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.”
Consideration
The words, “without 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 ss.587(1)(a), (b) and (c).
Mr Rosa has showed no willingness to progress his application and has not responded to the many attempts made by the Commission to contact him directly or indirectly. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
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