Mario Morvan v Sykes Australia Pty Ltd
[2023] FWC 3
•3 JANUARY 2023
| [2023] FWC 3 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mario Morvan
v
Sykes Australia Pty Ltd
(U2022/8415)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 3 JANUARY 2023 |
Application for an unfair dismissal remedy – applicant’s employment ended at conclusion of fixed term contract – decision to not renew applicant’s employment based upon various concerns as to the Applicant’s substandard work performance (not following processes, refusal to work from office, and repeated breaches of policy) and poor attendance record - repeated failures by applicant to comply with directions – no explanation for non-compliance – application dismissed
Background
On 16 August 2022, Mr Mario Morvan (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Applicant alleges that he was dismissed unfairly by his former employer, Sykes Australia Pty Ltd (Respondent).
The Respondent says that the Applicant was not dismissed, but that his fixed term employment contract came to an end (Fixed Term Contract Objection). Notwithstanding this apparent complete defence to the Application, the Respondent also points out that its decision not to renew the Applicant’s employment was based upon various concerns as to the Applicant’s substandard work performance (not following processes, refusal to work from office, and repeated breaches of policy) and poor attendance record.
The matter was allocated to my Chambers on 10 November 2022. A notice of listing and directions were issued to the parties that day.
A Hearing was conducted on 21 December 2022 to deal with the Fixed Term Contract Objection. At the conclusion of the Hearing, as a result of contentions being made by the Applicant as to the authenticity of documents being relied upon in the proceedings, I directed the Applicant to advise my Chambers by no later than 12:00pm, Friday, 30 December 2022, as to whether he wished to continue with his Application or withdraw (discontinue) it (Advice Direction).
Chambers received an email from the Applicant on 21 December 2022 re-attaching his Form F2. Chambers thereafter received three further emails from the Applicant on 29 December 2022. None of the emails sent by the Applicant to Chambers post the Hearing was in any way responsive to the Advice Direction.
On Friday, 30 December 2022, at 1:24pm AEDT, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with the Advice Direction, and issuing further a direction for the Applicant to:
“… advise by no later than 5:00 PM Today, 30 December 2022 whether [he wishes] to continue with [his] claim or withdraw [discontinue] it.”
The Applicant was notified in the Show Cause Email that “[i]f no response to the [foregoing direction] is received by this time, the matter will be dismissed without further notice.”
The only response received from the Applicant to the Show Cause Email was an email sent by him to Chambers at 2.22PM AEDT on 30 December 2022, which reads:
“To the Deputy President’s direction
It appears to me that I was working for Sitel Group without my consent.”
In my view, the foregoing response is not only non-responsive to the Advice Direction and the Show Cause Email, but nonsensical.
Legislative Provisions
Section 587 of the Act reads:
“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.”
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
As the Applicant has made no attempt to comply with the Advice Direction, or the Show Cause Email, I have decided to dismiss his Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to comply with the Advice Direction, and/or contact my Chambers to explain his non-compliance, but has instead expressed a clear disinterest in process and procedure. Pursuant to s.587(3)(a) of the Act, the Application is dismissed for non-compliance with the Advice Direction and the absence of a responsive (or satisfactory) response to the Show Cause Email. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, at [9].
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