Julian Korau v Sia Construct Pty Ltd
[2024] FWC 3504
•17 DECEMBER 2024
| [2024] FWC 3504 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julian Korau
v
Sia Construct Pty Ltd
(U2024/12729)
| DEPUTY PRESIDENT BELL | MELBOURNE, 17 DECEMBER 2024 |
Application for an unfair dismissal remedy – s.587 – failure to prosecute case –failure to file material by due dates – no reasonable prospect of success – application dismissed.
On 24 October 2024 Mr Julian Korau (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 Sia Construct Pty Ltd (Respondent) on 18 October 2024.
In its Form F3 Employer response the Respondent has raised a jurisdictional objection that the Applicant was not dismissed. It contends that the Applicant resigned his employment with the Respondent, ending his employment voluntarily.
Upon the matter being allocated to me, I issued directions on 29 November 2024 for the conduct of the proceeding. The directions listed the matter for a hearing on all matters (not just the Respondent’s jurisdictional objection) for 21 January 2025, in person at the Fair Work Commission in Melbourne. The directions also listed the matter for a mention/conference on Friday, 6 December 2024 and made timetabling orders for the filing of material. The first of those timetabling orders required, by Friday 13 December 2024, the Applicant to file with the Commission and serve on the Respondent any witness statements, other documentary evidence and submissions on which he intends to rely about all matters.
The Directions set out the matters to be addressed at the Mention/Conference at 2pm, on Friday 6 December:
“a. Any questions the parties might have about the directions below requiring them to file evidence and submissions, including the number of witnesses each party is likely to call at the Conference/Hearing on Tuesday 21 January 2025.
b. Any application by the parties under s.596 of the Act for permission to be represented by a lawyer or paid agent.
c. Whether the Application should proceed by way of Conference or Hearing, and whether the Conference/Hearing on 21 January 2025 should be listed ‘in person’ or by Microsoft Teams.
d. The prospects of conciliation to resolve the Application prior to the matter proceeding to Conference/Hearing on 21 January 2025.
e. Any other matters.”
At 11.29am on the day of the mention hearing, my chambers received an email from the Applicant’s solicitor, indicating the solicitor had not received any recent instructions. With formalities excluded, the email stated:
“The Applicant is overseas and we are experiencing difficulties in obtaining clear instructions. On our present understanding the Applicant is not able to attend today as he does not have phone reception or a reliable internet connection (which is why we are having difficulties obtaining instructions). We have not received instructions to attend the Mention. If we do not receive clear instructions from the Applicant before the Mention, however, we may not be able to assist the Commission with progressing the matter at this time.
Would the Commission be minded to have the matter adjourned for 1 week or a time suitable to the member?”
On 6 December 2024, I sent an email to the parties via chambers cancelling the mention hearing, otherwise affirming the directions on foot and indicating that there if there was unexplained non-compliance, the matter might be dismissed. The relevant parts of that email were (original emphasis):
“In light of the Applicant’s apparent unavailability, and your difficulty in getting instructions, the Deputy President will vacate today’s mention hearing – the parties are not required to attend.
The mention hearing will not be relisted, noting that its primary purpose is usually for the benefit of the applicant (where they are unrepresented), to explain the Directions and to ensure the matter is on track. Mention hearings are helpful but are not essential.
Accordingly, parties will shortly receive the listing scheduling the Jurisdiction and Merits/Remedy conference/hearing in this matter on Tuesday 21 January 2025 commencing at 10am AEDT. This will be held in person at the Fair Work Commission in Melbourne (11 Exhibition Street).
For avoidance of doubt, the Direction issued on 29 November 2024 remain on foot – accordingly the Applicant material is to be filed and served by 4:00pm AEDT next Friday 13 December 2024. If there is further non-compliance by the Applicant, his application may be dismissed pursuant to s.587 of the Fair Work Act 2009 (or 399A of the Act if an application is made by the Respondent) without hearing further from the Applicant.”
The Applicant did not file any material by 13 December 2024 nor proffer any explanation directly himself or via his solicitor (the latter of whom I infer having no instructions to meaningfully engage with the Commission, if any instructions to act at all.)
On Monday, 16 December 2024, the Respondent’s representative sent the following email to chambers (formalities excluded):
“For your information have proof the applicant is in New Zealand at the moment and his brothers that are on holiday with him have been doing live Facebook videos. I think the unavailability is by choice.”
I express no view as to the substance of the Respondent’s position, but that email certainly called for a response by the Applicant to explain his non-compliance in light of the earlier acts of non-compliance.
Putting aside the applicant’s unexplained failure to comply with the directions (as varied to vacate the mention hearing), it is now clear that he is not taking steps to prosecute his claim and I will dismiss the application for that reason under s 587 of the Act. The possibility of dismissal under s 587 was expressly communicated to the Applicant in the correspondence from chambers on 6 December 2024 and the earlier directions of 29 November 2024. I am also satisfied that, in the absence of any evidence for his claim, the claim has no reasonable prospects of success.
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, which I have done so.
Section 587(1) 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. Section 587(1) is 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.”
I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s 587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the Applicant has not shown a willingness to prosecute his case. He failed to attend a mention hearing, failed to provide his solicitor instructions about the same, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions, including in circumstances where it was expressly foreshadowed that his application would be dismissed if that information was not provided.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s 587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR782524
Printed by authority of the Commonwealth Government Printer
<PR782493>
0
0
0