John Gleeson v Ventico Australia Pty Limited
[2023] FWC 1575
•29 JUNE 2023
| [2023] FWC 1575 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
John Gleeson
v
Ventico Australia Pty Limited
(C2023/2739)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 29 JUNE 2023 |
Application to deal with contraventions involving dismissal
Background
On 11 May 2023, Mr John Gleeson (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. That application was incomplete. An amended complete application was filed on 16 May 2023. Mr Gleeson commenced employment with Ventico Australia Pty Limited (Respondent) on 31 May 2022 and claims to have been dismissed on 20 April 2023.
The matter was allocated to my Chambers on 14 June 2023. A notice of listing was issued to the parties on 15 June 2023, with the matter listed for Mention/Directions on 23 June 2023 to deal with the ambiguity surrounding the filing of the application.
Following correspondence from the Respondent on 15 June 2023 advising its unavailability at that time, the parties were directed, by email on 16 June 2023 from my Chambers, to confer and provide mutually agreed availabilities for relisting. Only the Respondent provided alternative availabilities. The Applicant did not respond.
The matter was relisted for Mention/Directions at 1.30pm on 27 June 2023.
The Applicant did not attend the Mention/Directions despite multiple calls being made to him. Given the Applicant’s non-attendance (and lack of explanation for same), the listing did not proceed.
Later that day the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to attend the listed Mention/Directions, and issuing directions for the Applicant to:
“file with the Commission, and serve on the Respondent, written submissions regarding their non-attendance. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4.30pm AEST Today, 27 June 2023.”
Chambers received no further correspondence from the Applicant in compliance with the Show Cause Email.
Legislative Provisions
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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”i
Consideration
As the Applicant has made no attempt to comply with the Show Cause Email, and has failed to explain his non-attendance and non-compliance, I have decided to dismiss his Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s non-attendance and non-compliance with directions is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or prosecute his case, and/or contact the Commission to explain his non-compliance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of his own case.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR763739>
0