Joseph Prem Jinadasa v Synnex Australia Pty Ltd
[2022] FWC 795
| [2022] FWC 795 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Prem Jinadasa
v
Synnex Australia Pty Ltd
(U2022/408)
| DEPUTY PRESIDENT BELL | MELBOURNE, 8 APRIL 2022 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.587.
On 6 January 2022, Mr Joseph Jinadasa (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Synnex Australia Pty Ltd (Respondent) on 20 December 2021.
The Respondent agrees the Applicant was dismissed on 20 December 2021 but denies the dismissal was unfair. Among other matters, and by way of high-level summary only, the Respondent contended that the Applicant was dismissed from his employment due to the consequences of the Victorian government COVID-19 ‘mandate’ in force at the relevant times. That mandate required, among other matters, proof of vaccination status as a condition of allowing certain employees to attend a worksite. Accordingly, the Respondent contends that the Applicant was unable to perform the work as a Warehouse Storeman he had been employed to do on the Respondent’s Victorian site. The Respondent ‘Form F3’ response set out in some detail various opportunities that the Respondent said it gave to the Applicant to respond about those matters. It is unnecessary to set them out but it is sufficient to note that the Applicant’s employment was terminated in relation to them.
On 23 March 2022, the Applicant corresponded with the Commission and included two documents that challenged the jurisdiction of the Fair Work Commission. They are lengthy in combination, include extracts of various cases from the High Court of Australia, and it is not practicable to set them out. One document begins “Take notice this 23 March, 2022, that the jurisdiction of the Commission is hereby challenged and accompanied by a notice of demand to dismiss the matter for lack of subject matter jurisdiction.” The notice of demand concerned the proposition that the Commission does not answer the description of a Court and therefore cannot exercise the judicial powers of the Commonwealth. The Applicant concluded that “the Commission is compelled by law to dismiss the matter for want of jurisdiction and I require this dismissal stating that the Commission has no jurisdiction to adjudicate upon matters that fall within the ambit of ss 75 and 76 of the Constitution.”
I caused correspondence to be issued that day to clarify if the Applicant wished to have the matter dismissed or to discontinue. If not, the Applicant was reminded of his obligation to file and serve his evidence and supporting material by 4:00pm, 25 March 2022.
On 24 March 2022, the Applicant responded. I will not set it out but it raised similar issues to those contained in the earlier notices. It concluded that the “order from the Commission must state” (original emphasis) in writing that “The Commission dismisses the matter for want of jurisdiction as it has no authority to hear and adjudicate upon a Federal Act, the Fair Work Act 2009 (Cth).”
On 25 March 2022, I caused correspondence to be issued to the parties that (in summary) indicated I considered I had jurisdiction, inquired again if the Applicant wished to proceed, and reminded the Applicant that his material was due that day and the possible consequences of dismissal of his Application if it was not filed. The Applicant filed a witness statement that adopted various submissions and other evidence (including correspondence). It is not necessary to set them out.
On 5 April 2022, the Applicant submitted further correspondence titled “Notice of Demand to the Commission to Prove Jurisdiction”. It raised similar issues to the above matters.
On 6 April 2022, I sought the parties’ availability for a mention hearing by Microsoft Teams at 10.00am on 8 April 2022. The Applicant initially indicated he was unavailable until Thursday, 14 April 2022 “at the earliest” and had various difficulties with the internet but subsequently confirmed his availability. The Respondent was available. A Notice of Listing was issued for 10:00am, Friday 8 April 2022. It directed the parties to connect ten minutes prior to the scheduled start time.
Following the notice of listing being issued, the Applicant sent an email at 4:15pm on 7 April 2022 stating “see the attached Re: the listing for tomorrow”. The attachment was a one-page letter. Among other matters, it reaffirmed the Applicant’s concern about jurisdiction and stated:
“If the Commission does not prove all elements of jurisdiction upon the record, you will leave me with no choice but to seek Writs of Prohibition and Mandamus in the High Court against you. Every order or mention or any other procedure that you have made in this matter are all null and void absent jurisdiction. I will not be attending any mention or be compliant with any order until you prove you have authority to make such an order.” (Original emphasis).
On Friday, 8 April 2022, the Applicant had not joined the Microsoft Teams link provided for the mention hearing in the time provided. My associate called him a few minutes before the allocated start time. The call was not answered. A second call at about 10:01am was answered. During that call, the Applicant informed my associate that (in summary):
· He said he won’t be attending this morning and to read the email he sent yesterday. He said the Deputy President can do whatever he has to do. The Applicant said he is happy to take it all the way to the High Court.
· When asked if he was refusing to attend, the Applicant stated he has no obligation to attend, it is the same as Coles saying he has to attend a meeting.
· When asked to confirm attendance again, he stated he was not attending, and to read his email.
The Applicant did not attend.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations.
Section 578 of the Act requires me when exercising powers under the Act to take various matters into account.
Section 587 of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative.
Having regard to the above matters, I am satisfied that the application has no reasonable prospects of success. I note the Applicant will not be attending the substantive merits hearing and would not be available to adduce his evidence nor be available for examination. The Applicant has indicated in clear terms his view that the Commission simply has no jurisdiction at all to hear his matter and that he will “not be attending any mention or be compliant with any order” until jurisdiction is proved. I am also satisfied that I should exercise my discretion to dismiss the matter under s.587 of the Act. In doing so, I have had regard to the requirements of section 577 and 578 of the Act.
An Order[1] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
No appearance by J Jinadasa
J Ward of Counsel for the Respondent
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
April 8.
[1] PR740171
Printed by authority of the Commonwealth Government Printer
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