Koh Chatterjee v DHL Supply Chain (Australia) Pty Ltd
[2022] FWC 3330
•21 DECEMBER 2022
| [2022] FWC 3330 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Koh Chatterjee
v
DHL Supply Chain (Australia) Pty Ltd
(U2022/10945)
| DEPUTY PRESIDENT BELL | MELBOURNE, 21 DECEMBER 2022 |
Application for an unfair dismissal remedy - application dismissed pursuant to s.587.
On 15 November 2022, Mr Koh Chatterjee (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 “DHL (Mattel) – Truganina 1 Warehouse” on 11 November 2022.
A Form F3 Employer Response was lodged by DHL Supply Chain (Australia) Pty Ltd (Respondent). The Respondent has raised a threshold jurisdictional objection, contending that the Applicant was not an employee of the Respondent. The Respondent states the Applicant was employed by a labour hire provider, which it believes to be Action Workforce Pty Limited. The Response also noted that the correct legal name of the Respondent is ‘DHL Supply Chain (Australia) Pty Ltd’, not ‘DHL (Mattel) – Truganina 1 Warehouse’ as named on the Applicant’s F2 Application form.
On 9 December 2022, I issued directions that, among other matters, required:
· By Wednesday 14 December 2022, the Applicant to file with the Commission and serve on the Applicant any contract of employment and his most recent three pay slips for any of the following entities:
a.DHL Supply Chain (Australia) Pty Ltd / DHL (Mattel) – Truganina 1 Warehouse;
b. Action Workforce Pty Limited (or similar).
· At 9:00am, 16 December 2022, the parties to attend a mention hearing (by Microsoft Teams) before me.
The other substantive directions required the Applicant to file evidence and submissions on the jurisdictional question by 4:00pm, Tuesday 20 December 2022 and the Respondent to file its material by 6 January 2022. The matter was listed for hearing before me on the jurisdictional issue on 9 January 2022.
The Applicant did not comply with the first of the above directions at the applicable time nor did he appear at the mention hearing. No communication of any kind was provided to explain non-compliance nor to indicate he intended to do so. Emails from my chambers (copying in the Applicant’s representative on his Form F2) were made and, again, no response or acknowledgement was made. Similarly, telephone calls by chambers on 15 and 16 December 2022 were made to the Applicant’s mobile telephone number listed on his Form F2 to no avail.
The Respondent did attend the mention hearing. At the mention hearing, I inquired whether the Respondent’s jurisdictional objection remained. The Respondent confirmed that position and also indicated it would provide (following a request by me) any illustrative documentation it had at hand that would indicate the identity of the Applicant’s employer. I also corrected the name of the Respondent on the Commission’s file at the mention hearing.
Immediately following the mention hearing, I again sought to correspond with the Applicant. An email from chambers to the Applicant set out the defaults described above and warned the Applicant that his matter might be dismissed without further notice if an explanation was not provided by Monday, 19 December 2022. The email also confirmed that the directions issued on 9 December 2022 (which required the Applicant to file and serve his material by 4:00pm, 20 December 2022) remained on foot. A telephone call was made to the Applicant’s mobile number drawing attention to the correspondence.
On 19 December 2022, the Respondent sent through to chambers (copying the Applicant) some documentary evidence in support of its position that the Applicant’s employer was the labour supply entity, Action Workforce Pty Limit. I make no concluded view on that question, although the material is prima facie indicative that the Respondent’s position is correct. If that was the case, it perhaps supplies an explanation as to why the Applicant might not wish to pursue his application, although it does not excuse his failure to correspond or comply with orders of the Commission.
By close of business on 19 December 2022, the Applicant did not proffer any explanation as required by the email from my chambers on 16 December 2022. By close of business on 20 December 2022, the Applicant had not filed any material in accordance with the directions issued on 9 December 2022.
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(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 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 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 hearing of the Commission despite being advised that he was required to attend, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions, which he was separately required to provide.
Additionally, the material provided by the Respondent indicates that it is not the employer. As the Applicant has not filed any material of his own nor is likely to do so, I am satisfied on the material before me that the Applicant’s claim has no reasonable prospects of success.
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 section 577 and 578 of the Act.
An Order[1] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
[1] PR749088
Printed by authority of the Commonwealth Government Printer
<PR749087>
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