Jose Rommel Ocbina v Ability Options Summary

[2024] FWC 922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jose Rommel Ocbina
v

Ability Options

(U2024/1440)

DEPUTY PRESIDENT EASTON

SYDNEY, 10 APRIL 2024

Application for an unfair dismissal remedy

Mr Jose Rommel Ocbina was dismissed from his employment on 31 January 2024. On 11 February 2024, Mr Ocbina filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Ocbina appears to have been employed by Ability Options Limited.

A conciliation conference was scheduled on 18 March 2024 however Mr Ocbina did not attend.

On 19 March 2024, correspondence was sent to Mr Ocbina regarding his non-attendance at the scheduled conciliation as well as an administrative query about the legal name of his former employer. The correspondence asked Mr Ocbina to confirm he wanted to proceed with the application and invited him to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. Mr Ocbina was required to respond by 26 March 2024.

On 24 March 2024, Mr Ocbina contacted the Commission by email apologising for not being able to attend the conciliation and sought a return call. On 25 March 2024, the Commission attempted to contact Mr Ocbina via phone as requested and a voicemail message was left advising Mr Ocbina to respond to the legal name discrepancy part of the correspondence as soon as possible, reminding him of the deadline of 26 March 2024. Mr Ocbina did not respond to this.

Further correspondence was sent to Mr Ocbina on 4 April 2024, and he was required to respond by 5:00pm on 9 April 2024. Mr Ocbina was also advised that his application may be dismissed without further notice if he did not respond. Mr Ocbina 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 Ocbina’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 (PR773352).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jose Rommel Ocbina filed an application for unfair dismissal against Ability Options, claiming he was dismissed on 31 January 2024. He filed the application on 11 February 2024. The Fair Work Commission was required to determine if the dismissal was unfair under the Fair Work Act 2009. A conciliation conference was scheduled for 18 March 2024, but Ocbina did not attend. The Commission sent multiple correspondences to Ocbina to address his non-attendance and to clarify the legal name of his employer. Ocbina did not respond to any of these communications, despite deadlines being set and warnings that his application might be dismissed if he failed to respond.

The legal issues before the Commission included whether Ocbina's failure to respond to the Commission's correspondence and to attend the conciliation conference warranted the dismissal of his application under section 587 of the Act. Section 587 allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Furthermore, the Commission has the authority to dismiss an application on its own initiative if it believes the application lacks merit or has been neglected. In this case, Ocbina's failure to respond to multiple communications and missed deadlines provided grounds for the Commission to dismiss the application.

The Deputy President concluded that Ocbina's application should be dismissed for want of prosecution. The President noted that the Commission's power to dismiss an application is not limited to the specific circumstances outlined in section 587(1)(a), (b), and (c) of the Act. The President exercised this discretionary power under section 587(3)(a) of the Act, dismissing the application on the basis of Ocbina's non-attendance at the conciliation and his failure to respond to the Commission's correspondence. An order was made to this effect (PR773352).

Jose Rommel Ocbina v Ability Options

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