Khaled Hoblos v Euro Car Parts Pty Limited

[2021] FWC 4494

[2021] FWC 4494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Khaled Hoblos
v
Euro Car Parts Pty Limited
(C2021/1842)

DEPUTY PRESIDENT BOYCE SYDNEY, 26 JULY 2021

Application to deal with contraventions involving dismissal.

Background

[1] On 31 March 2021, Mr Khaled Hoblos (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

[2] Mr Hoblos commenced employment with Euro Car Parts Pty Ltd (Respondent) on 14 January 2021 and argues that he was “dismissed” on 15 March 2021. The Respondent in the Form F8A filed on 14 April 2021 raises a jurisdictional objection that the Applicant was not “dismissed” but has abandoned his employment.

[3] The matter was allocated to my Chambers on 17 June 2021. A Notice of Listing and Directions were issued to the parties on the same day, with the matter listed for Hearing to deal with the jurisdictional objection on 3 August 2021.

[4] Orders [2] to [4] of the Directions issued 17 June 2021 read as follows:

“[2] By 4.00pm AEDT on Friday, 2 July 2021, the Respondent must file with the Commission and serve on the Applicant an outline of submissions, witness statements, and any documents in support of the jurisdictional objection they raise.

[3] By 4.00pm AEDT on Friday, 16 July 2021, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection raised.

[4] By 4.00pm AEDT on Friday, 23 July 2021, the Respondent must file in the Commission and serve on the Applicant any submissions in reply, and any documents in support of those reply submissions.”

[5] The Respondent failed to comply with Order [2] and was sent an email (Show Cause Email - Respondent) on 9 July 2021 raising the non-compliance. The Respondent replied on 12 July 2021, explaining that the company faced difficulties complying with Directions stemming from the continuing lockdown in the Sydney Area due to the COVID-19 outbreak in June 2021.

[6] The parties were issued with a further Notice of Listing on 12 July 2021 listing the matter for urgent Mention on 15 July 2021 to resolve the issue of the Respondent’s non-compliance. On 15 July 2021, Mr Atul Chandra, Compliance & Legal Counsel for the Respondent, appeared for the Respondent. The Applicant did not attend this Mention and did not respond when called by my Associate.

[7] During the Mention, I granted an extension to the Respondent to file and serve submissions, witness statements and evidence by no later than 4.00pm AEDT Monday, 19 July 2021. This was confirmed by email to the parties the same day.

[8] Also on 15 July 2021, the Applicant was sent an email regarding his non-attendance at the Mention (Show Cause Email – Applicant), and issuing further Directions for the Applicant to:

“[1] …file with the Commission, and serve on the Respondent, written submissions regarding their non-attendance before the Commission and want of prosecution in this matter. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Tomorrow, 16 July 2021.”

[9] On 16 July 2021, my Associate called the Applicant to follow up the Show Cause Email - Applicant. During this telephone call, the Applicant indicated to my Associate that he was unwell, on medication, and no longer legally represented. My Associate advised the Applicant to reply to the Show Cause email so as to provide an explanation for his non-attendance for the Commission to consider.

[10] The Applicant then sent an email at 2:07pm AEDT that day to my Chambers which states:

“Hi I apologise for taking long to reply im on medication sleeping the while days. Is it possible to give me until next week to get a reply back from a lawyer he is going to represent me soon because I don't have a lawyer now? Thank you.”

[11] In consideration of these submissions as well as the extension already provided to the Respondent in the matter, I issued the following extension to the Applicant to file and serve his submissions and evidence, Directing as follows:

“[1] By 4.00pm AEDT on Tuesday, 20 July 2021, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

[12] The Applicant did not reply to this correspondence, nor comply with the extension afforded to him. On 20 July 2021, my Associate called the Applicant. During this telephone call, the Applicant indicated to my Associate that he had not seen the email from my Chambers offering him an extension, was still unwell, and still did not have legal representation. My Associate advised the Applicant to reply to the Show Cause email so as to provide an explanation for his non-compliance for the Commission to consider.

[13] The Applicant then sent an email at 1:42pm AEDT that day to my Chambers which included the following relevant submissions:

“I am sorry for the late reply, as I have mentioned to you early during our phone conversation I am going through a lot at the moment and I am at very high level of anxiety and stress. i am unable to communicate with anyone and the pain i am going through. in addition to the medications I am taking i am not in a situation to deal with this case now. if possible to give me longer time to try to contact a lawyer to represent me…”

[14] In consideration of these further submissions, I issued the following final extension to the Applicant, Directing as follows:

“[1] By 12:00pm AEDT on Friday, 23 July 2021, the Applicant is to either:

(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

(b) file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s application.

[2] Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter will be dismissed without further notice to the Applicant.

No further extensions can be granted in this matter as it will cause the Respondent’s case to be prejudiced.”

[15] As at the time this decision is published, the Applicant has not communicated any further with my Chambers, nor has he filed any materials in compliance with the foregoing final Directions.

Legislative Provisions

[16] Section 587 of the Act provides 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.

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 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.”

[17] In Rebecca Tomas v Symbian Health[2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.” 1

Consideration

[18] The Applicant has made no attempt to comply with Directions to file and serve submissions and evidence, despite repeated extensions and opportunities. Further, he has failed to adequately communicate with my Chambers, and/or ceased communicating with my Chambers altogether. Although he has provided some explanation along the way to justify his non-compliance, he has failed to provide any medical evidence to substantiate his assertions as to illness and/or incapacity affecting his ability to comply with Directions.

[19] The Respondent did not make a formal application that the application be summarily dismissed. Notwithstanding, I find, pursuant to s.587(3)(a), that the application should be dismissed for want of due prosecution. An Order dismissing the application will be published with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732147>

 1   See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].