Keegan Moller v Sustainhealth Consulting Pty Limited

[2024] FWC 2689

[2024] FWC 2689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Keegan Moller
v

Sustainhealth Consulting Pty Limited

(C2024/5863)

COMMISSIONER SCHNEIDER PERTH, 26 SEPTEMBER 2024

Application to deal with contraventions involving dismissal

1. This matter involves an application made by Mr Keegan Moller (the Applicant) under section 365 of the Fair Work Act 2009 (Cth) (the Act) in the Fair Work Commission (the Commission).

1. This decision deals with the repeated non-compliance of the Applicant in response to the Commission’s directions.

Background – Non-Compliance

1. Correspondence was sent to the parties, on 18 September 2024, outlining that the matter was listed for conference on 25 September 2024. This was sent to the Applicant by email.

1. The matter was listed at 9:30AM on 25 September 2024, by video, using Microsoft Teams. The parties were provided with a link to join the conference on the Notice of Listing provided on 18 September 2024.

1. On the morning of 25 September 2024, prior to the commencement of the conference, the associate sent the parties an email. This email, again, contained the link to join the conference and requested that the parties join approximately 10 minutes prior to the commencement time.

1. The Applicant did not join the conference in the lead up to the commencement time.

1. Subsequently, an email was sent to the Applicant requesting they urgently join the conference. The Applicant did not join the conference.

1. Finally, I instructed my associate to allow 10 minutes from the intended commencement time of the conference to pass to facilitate the Applicant’s attendance. My associate confirmed these instructions, by email, to the Applicant and noted that non-compliance with the Commission’s directions could result in the file being closed.

1. The Applicant did not attend the conference, despite the additional time afforded, and did not contact my Chambers in response to the repeated attempts to reach out. At approximately 9:48AM on 25 September 2024, the conference was adjourned due to the Applicant’s failure to attend.

1. Following the adjournment of the conference, a letter regarding the non-compliance was sent to the Applicant. This letter warned that the matter could be dismissed in the event of further non-compliance. The letter included a direction for the Applicant to file a response regarding their non-compliance and the potential dismissal of the matter by 9:00AM on 26 September 2024.

1. No response was received by the Applicant in compliance with the letter and direction issued.

1. A final notice of non-compliance was then issued to the Applicant. This final notice required the Applicant to comply by 4:00PM on 26 September 2024 and further highlighted the likely dismissal of the matter in the event of further non-compliance.

1. Prior to the deadline, my associate sent a further email as a reminder to the Applicant about the looming deadline and, again, highlighted that the matter would be dismissed on my instruction in the event of further non-compliance.

1. No response was received by the Applicant in compliance with any of the Commission’s directions.

1. As of the date and time of this Decision, no further communication from the Applicant has been received.

Legislation

1. Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

1. Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.

1. Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.

1. Section 587(3) of the Act reads 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.

(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.”

Consideration

1. In this case, the Applicant has failed to comply with the Commission’s directions on several occasions and was on notice that repeated non-compliance would be grounds for the application to be dismissed.

1. The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to their application if they did not. The Applicant has not attempted to contact my Chambers or comply with the directions.

1. The Commission has afforded the Applicant several opportunities to advance their application, despite the repeated non-compliance. The Applicant has repeatedly failed to comply with the directions of the Commission. The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

Conclusion

1. Given the above regrettable circumstances, I exercise my powers under section 587(3)(a) of the Act to dismiss this application on the initiative of the Commission. An Order to this effect will be issued in conjunction with this decision. [1]

COMMISSIONER

[1] [PR779702].

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