Mr Francisco Mejias v JB Hi-Fi Group Pty Ltd
[2024] FWC 3422
•6 DECEMBER 2024
| [2024] FWC 3422 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Francisco Mejias
v
JB Hi-Fi Group Pty Ltd
(U2024/11331)
| COMMISSIONER THORNTON | ADELAIDE, 6 DECEMBER 2024 |
Application for an unfair dismissal remedy – Application dismissed for want of prosecution
Mr Mejias (or the Applicant) lodged a claim for unfair dismissal on 23 September 2024.
On 26 September 2024 the Commission sent an email to the Applicant and asked him to provide an email address for the Respondent. There is no record on the Commission’s file that the Applicant ever responded to that correspondence.
On 23 October 2024 the Commission wrote to Mr Mejias, after he did not attend the conciliation conference before a staff conciliator[1], advising the parties that if the Applicant did not request a re-listing of the conciliation conference and provide reasons for his absence within two business days, the matter would be referred to arbitration before a member of the Commission.
On 30 October 2024 the matter was referred to my chambers and was listed for a directions hearing on 4 November 2024. There was no appearance from the Applicant.
Directions were issued that required the Applicant to file an outline of submissions, documentary evidence and statements of any witnesses on which he intended to rely by 13 November 2024. The matter was listed for hearing on 10 December 2024.
The Applicant did not file any material by 13 November 2024. On 14 November 2024 a notice of listing was sent to the parties for a hearing scheduled on 20 November 2024 that also said: “This directions hearing has been listed due to the Applicant’s failure to file material in compliance with the directions”.
The Applicant did not appear at the directions hearing listed on 20 November 2024. The Respondent was in attendance.
On 21 November 2024, my chambers sent the following email to the Applicant:
“Dear Mr Mejias
The Commission notes that you have:
1. Failed to attended the directions hearing listed on 4 November 2024;
2. Failed to file materials in accordance with directions issued by the Commissioner; and
3. Failed to attend the directions hearing listed to address your non-compliance with the directions on 20 November 2011.
If you wish to pursue your application it is necessary that you engage with the Fair Work Commission. If you do not respond to correspondence or engage with the process then your matter may be dismissed.
The Commission can dismiss your application on its own motion for what is referred to as ‘want of prosecution’ or a failure to progress your matter by attending hearings and filing evidence, under section 587 of the Fair Work Act. Alternatively, the Commission can dismiss your matter if the Respondent employer party makes an application for the dismissal of your matter under section 399A of the Act.
If the Commission does not receive a response from you to this correspondence by close of business on Monday 25 November 2024 requesting an extension of time to file your materials and providing any reasons for the non-compliance with directions, your matter may be dismissed pursuant to section 587 of the Fair Work Act without further notice to you.”
The Applicant has not made any contact with the Fair Work Commission in response to Chamber’s email of 21 November 2024. The Commission’s file shows there has been no contact by the Applicant with the Fair Work Commission since the Applicant’s application was initially filed.
The Respondent has not made an application pursuant to section 399A of the Fair Work Act 2009 (Cth) (the Act).
Section 587
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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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 the matter of Richard Bosworth v Coles Supermarket Beechboro[2] a Full Bench of the Commission noted:
“It seems from the various authorities to which we were referred that it has been accepted in decisions of the Commission that the three specific grounds for the dismissal of an application set out is s.587(1) of the Act are not exhaustive and therefore do not limit the circumstances in which an application may be dismissed by the Commission on its own initiative. Further, dismissal of an application “for want of prosecution” is a particular ground for dismissal of an application that has been used in various decisions of the Commission, with reliance routinely placed on a broader discretion conferred by the introductory words of s.587(1) of the Act.”[3]
The Full Bench of the Commission found in the matter of Viavattene v Health Care Australia[4]:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.”[5]
However, the Commission must also exercise its power to dismiss an application with caution:
“The Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant’s right to have their substantive application heard and determined by the Commission (assuming no other jurisdictional impediment arises preventing such determination).[6]
Mr Mejias has not complied with the directions of the Commission or attended directions hearings listed for the purposes of advancing his matter before the Commission. It appears from the material available that Mr Mejias has not had any contact with the Commission after he filed his initial application. Mr Mejias has been sent correspondence advising him that if he does not communicate with the Commission, or otherwise comply with directions of the Commission, that his matter may be dismissed.
There has not been any ‘bounce backs’ of email correspondence to the Applicant and the Commission has corresponded with the Applicant on the email address he provided in his application.
Mr Mejias has not responded to the correspondence sent on 21 November 2024, whereby he was offered a further opportunity to engage with the Commission and provide reasons for his non-compliance. In that correspondence Mr Mejias was advised that if he did not make contact with the Commission or advance his matter that it may be dismissed.
The Applicant’s conduct shows an unwillingness to participate in the proceedings commenced at his initiative.
In reliance on the broader discretion to conferred by the words ‘without limiting when the FWC may dismiss an application’ in section 587(1) of the Act and doing so cautiously but consistently with the information before me, it is appropriate in these circumstances to dismiss Mr Mejias’ application for unfair dismissal.
An order dismissing the application will be published concurrently with this decision.
COMMISSIONER
[1] Noting that the conciliator initially saw that the Applicant had attempted to join the conference but did not connect to the meeting or answer a number of calls made by the conciliator on the day of conciliation.
[2] [2022] FWCFB 153.
[3] Ibid at [48].
[4] [2013] FWCFB 2532.
[5] Ibid at [39].
[6] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952 at [9].
Printed by authority of the Commonwealth Government Printer
<PR782186>
0
0
0