Hilari Sirabahenda v Baiada Poultry Pty Limited

[2024] FWC 1136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Hilari Sirabahenda
v

Baiada Poultry Pty Limited

(U2024/2813)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 MAY 2024

Application for an unfair dismissal remedy

Mr Hilari Sirabahendawas dismissed from his employment on 21 February 2024. On 11 March 2024 Mr Sirabahendawas filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his application Mr Sirabahendawas named “Baiada Poultry Pty Limited” as his former employer.

Baiada objected to Mr Sirabahendawas application because it said he was not a direct employee of theirs, but a labour hire worker employed by APG Workforce.

A conciliation conference was scheduled on 17 April 2024, however Mr Sirabahendawas did not attend.

On 23 April 2024 correspondence was sent to Mr Sirabahendawas in relation to the legal name of his former employer and his non-attendance at scheduled conciliation, and he was required to respond by 30 April 2024. Mr Sirabahendawas did not respond to this correspondence.
Further correspondence was sent to Mr Sirabahendawas on 1 May 2024, and he was required to respond by 5:00pm on 6 May 2024. Mr Sirabahendawas was also advised that his application may be dismissed without further notice if he did not respond.

On 3 May 2024 Mr Sirabahendawas responded to this correspondence seeking to change the named Respondent of his application to the labour hire company, APG Workforce.

On the same day correspondence was sent to Mr Sirabahendawas advising him that he was able to make a fresh application against APG Workforce but would not be able to substitute APG as the Respondent on this application. He was also provided information on out of time applications. Mr Sirabahendawas was asked to discontinue his application by 8 May 2024. Mr Sirabahendawas did not respond to this correspondence.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

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 s.587(1)(a), (b) and (c).

In the circumstances I have decided to dismiss Mr Sirabahendawas’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

I have separately made an order to this effect (PR774403).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Hilari Sirabahenda v Baiada Poultry Pty Limited involves an application for an unfair dismissal remedy by Mr Hilari Sirabahenda against Baiada Poultry Pty Limited. Mr Sirabahenda, who was dismissed on 21 February 2024, filed an application under section 394 of the Fair Work Act 2009 on 11 March 2024. Baiada Poultry Pty Limited objected to the application, asserting that Mr Sirabahenda was not a direct employee but a labour hire worker employed by APG Workforce. The case was set for conciliation on 17 April 2024, but Mr Sirabahenda did not attend. Despite subsequent correspondence and deadlines for response, Mr Sirabahenda failed to address the issues raised by Baiada Poultry, leading to a decision to dismiss the application. The Deputy President found that the application was not being prosecuted diligently, leading to its dismissal under section 587(3)(a) of the Fair Work Act.

The legal issues before the Deputy President included whether Mr Sirabahenda was an employee of Baiada Poultry Pty Limited and whether the application could be pursued against Baiada Poultry or should be directed to APG Workforce, the labour hire company. The central issue was whether the application could be maintained against Baiada Poultry, or if Mr Sirabahenda should make a fresh application against APG Workforce. Additionally, the Deputy President had to consider whether Mr Sirabahenda's failure to respond to correspondence and attend conciliation justified the dismissal of the application under section 587 of the Fair Work Act.

The Deputy President concluded that Mr Sirabahenda’s failure to attend the conciliation conference, respond to correspondence, and prosecute the application diligently warranted dismissal. Despite Mr Sirabahenda’s attempt to amend the named respondent to APG Workforce, the Deputy President found that this was not permissible under the Act. The Deputy President exercised the discretion provided under section 587(3)(a) of the Fair Work Act to dismiss the application on their own initiative. The Deputy President further noted that the application had no reasonable prospects of success and was effectively abandoned due to Mr Sirabahenda’s inaction.

In light of the above, the Deputy President dismissed Mr Sirabahenda’s application for unfair dismissal against Baiada Poultry Pty Limited. The dismissal was made under section 587(3)(a) of the Fair Work Act for want of prosecution. An order to this effect was issued, closing the proceedings against Baiada Poultry Pty Limited. Mr Sirabahenda was advised that he could make a fresh application against APG Workforce if he wished to pursue his claim further.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established