Kevin Lawless v Techforce Personnel Pty Limited

[2021] FWC 6265

[2021] FWC 6265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
Techforce Personnel Pty Limited
(C2021/3355)

COMMISSIONER WILLIAMS PERTH, 4 NOVEMBER 2021

Application to deal with contraventions involving dismissal - s.587.

[1] This matter involves an application made by Mr Kevin Lawless (the Applicant or Mr Lawless) under section 365 of the Fair Work Act 2009 (the Act) to deal with alleged contraventions involving dismissal. The respondent is Techforce Personnel Pty Limited (the Respondent or Techforce).

[2] The Respondent objects to the application on the ground that Techforce is not and had never been the Applicant’s employer but rather the Applicant commenced a recruitment process to apply for a position onsite with Rio Tinto which was ultimately not offered to the Applicant due to his alleged abusive behaviour towards Techforce staff and their health service provider whilst undergoing a standard pre-employment medical assessment.

[3] The application was the subject of a conference with a Fair Work Commission staff conciliator however the matter was not resolved and so was referred to me for arbitration to determine whether the Applicant had been dismissed.

[4] Correspondence was sent to the parties on 15 September 2021 notifying them of a hearing and providing specific directions to each party. This was sent to the Applicant by email. The Respondent on 4 October 2021 did comply with the Fair Work Commission’s directions to file its hearing materials in support of their objection. The Applicant was directed to provide written materials in response to the Respondent’s objection by 25 October 2021. Nothing was received from the applicant by this date.

[5] A follow up letter was emailed to the Applicant on 26 October 2021 regarding his failure to comply with the Fair Work Commission’s direction and directing that his materials be filed and served on the Respondent by 10:00am 29 October 2021. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[6] That same day, 26 October 2021, the Applicant contacted my chambers by telephone. During this telephone discussion my associate discussed with the Applicant what was required of him in compliance with the Fair Work Commission’s directions however the call was ended when the Applicant became aggressive.

[7] At 4:43pm on 26 October 2021 the Applicant sent an email to chambers, amongst other things, stating that,

“I am unable to send you evidence in writing to support the evidence and submissions in support of my request for an extension of the time for filing due to my paralyzation” (sic)

[8] The Applicant has not filed any materials in compliance with the Fair Work Commission’s directions by the 29 October 2021 deadline.

[9] The Fair Work Commission’s records show that the Applicant also has another section 365 application before Deputy President Mansini (C2021/3165).

[10] In that matter the Commission’s records show that the Applicant sent an email to the Deputy President’s chambers on 25 October 2021, participated in a hearing on 29 October 2021 and on 1 November 2021 emailed typed detailed submissions of the same date. This contradicts the Applicant’s emailed explanation that he was unable to respond to the Commission in writing.

[11] Mr Lawless is an experienced self-represented applicant who has also previously made the following applications in the Fair Work Commission:

•  U2010/10806

•  C2010/4409

•  C2019/3837

•  C2021/1763

•  C2021/1765

•  C2021/1766

[12] Recently, Commissioner Platt and Deputy President Beaumont have issued decision dismissing section 365 applications of Mr Lawless. 1

The legislation

[13] Section 577 of the Act obliges the Fair Work 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.

[14] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[15] In this case the applicant has repeatedly failed to comply with the Fair Work Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[16] Consequently, my decision is that this application to deal with contraventions involving dismissal should now dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

[17] An order [PR735469] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR735468>

 1   [2021] FWC 2908 and [2021] FWC 4574.