Mr Jayden Pajune v Yurra Pty Ltd
[2025] FWC 230
•31 JANUARY 2025
| [2025] FWC 230 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Jayden Pajune
v
Yurra Pty Ltd
(C2024/9003)
| COMMISSIONER REDFORD | MELBOURNE, 31 JANUARY 2025 |
Application to deal with contraventions involving dismissal
On 10 December 2024 Mr Jayden Pajune made an application pursuant to s 365 of the Fair Work Act 2009 (the Act) against Yurra Pty Ltd (the Respondent) alleging that the dismissal of his employment occurred in a manner that was in contravention of the Act.
The application was allocated to my chambers on 23 December 2024.
Pursuant to s 368 of the Act, I listed the matter for a conference to occur on 15 January 2025.
The Respondent attended the conference, but Mr Pajune did not.
At the appointed time, my associate contacted Mr Pajune by phone and email to remind him to join the conference. There was no answer or response.
During the conference, the Respondent submitted that, on the basis of Mr Pajune’s failure to attend the conference, the Commission should consider dismissing the application.
The matter was listed for another conference. Along with a Notice of Listing, an email was sent to Mr Pajune which said:
“You filed a general protections application against your former employer, Yurra Pty Ltd, on 10 December 2024.
A conference was held today at 2:00pm (Victorian Time) which you failed to attend. Chambers attempted to contact you via email and telephone and then dial you into the Microsoft teams conference via telephone.
In these circumstances the Commission intends to list this matter for a further conference.
This conference will take place at 2PM Victorian time (11AM WA Time) on Thursday 23 January 2025 and your attendance is required. A notice of listing is attached to this email.
At the conference, you will be required to address the Commission on the reasons for your non-compliance in this matter and on the question of whether the application should be dismissed for want of prosecution.
Your continued failure to engage or communicate about this matter, and/or your failure to attend the mention hearing on Thursday 23 January 2025 is likely to result in your application being dismissed.”
The second conference in relation to this matter took place on 23 January 2025. Again, the Respondent attended the conference, but Mr Pajune did not, and it was necessary for my associate to contact him at the appointed time. This time, Mr Pajune did answer and was joined to the conference via phone.
Shortly after the commencement of the conference, Mr Pajune appeared to drop off the line. Several attempts were made by chambers to contact him so he could re-join the conference, but there was no response to those attempts to contact him by phone.
In the short exchange that occurred with Mr Pajune during the part of the conference he did attend, it appeared questionable as to whether he understood the nature of the proceedings.
During the conference, the Respondent confirmed that it seeks the Commission dismiss the application. I am prepared to treat this submission as an application made by the Respondent pursuant to s 587(3)(b) of the Act.
On 23 January 2025 I issued Directions in relation to the Respondent’s application for the dismissal of Mr Pajune’s application. In those Directions I set out some short background to the matter, indicating that the Respondent sought that the application be dismissed pursuant to s 587, a section of the Act that is frequently the basis upon which the Commission will dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance.
The parties were directed to file and serve a submissions, as to why the application should or should not be dismissed, and provide any other material it wished the Commission to have regard to. This was to occur in the Respondent’s case by 4:00PM on 24 January 2025 and in Mr Pajune’s case, by 4:00PM on 28 January 2025.
On 23 January 2025 I received from the Respondent an email which said:
“Please find below submission to have the application dismissed.
Yurra had attended both conferences to resolve Mr Pajune application.
Mr Pajune did not attend the first conference on the 15th January 2025.
Mr Pajune did attend the second conference but during the proceeding went offline and did not return to the conference and Yurra were not able to resolve or be given the opportunity to respond to Mr Pajune application.
Yurra request that the application be dismissed as Mr Pajune has not complied to the directions through non-attendance.”
By 4:30PM on 28 January 2025 Mr Pajune had not filed any material in relation to the matter, despite being directed to do so. At this time, an email was sent to him by my chambers which said:
“Dear Mr Pajune
You have failed to properly participate in an application you have made against Yurra Pty Ltd, concerning the termination of your employment.
In particular, you failed to properly attend conferences listed in the matter on 15 January 2025 and 23 January 2025, and have failed to follow the directions of the Commission that you file and serve an outline of submissions in your matter by 4:00PM today, as to why it should not be dismissed.
Despite having failed to comply with this direction, you are now afforded one more opportunity to provide the Commission with a submission as to why your application should not be dismissed, for reasons that you are failing to participate in it.
This must occur by 4:00PM tomorrow, 29 January 2025. If it does not occur, the Commission will determine the matter based on the material before it, which may mean that your case is dismissed.”
There was no response from Mr Pajune to this email, and he has not filed any material in relation to the application that the matter be dismissed.
Consideration
Section 587 of the Act provides:
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 32, 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.
Frequently, this section of the Act is the basis upon which the Commission may dismiss applications in circumstances where a party fails to comply with the Directions of the Commission, such as through non-attendance[1]. The words “without limiting when the FWC may dismiss an application” in s 587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s 587(1)(a), (b) and (c).
Some of the principles guiding the exercise of the power under s 587 of the Act were usefully summarised by Easton DP in Bond v Carbridge Pty Ltd T/A Carbridge[2]. These include that the exercise of the power should be used with caution and is subject to the Commission acting judiciously and affording applicant’s procedural fairness (although without necessitating a hearing).
In this matter, I consider it apparent that Mr Pajune did not properly participate in his application after he filed it and does not intend to do so. In particular, since the application was filed he has only participated in the proceeding momentarily, after it was necessary for my chambers to contact him and encourage him to do so, but his participation was short-lived, after he suddenly absented himself again. Otherwise, he has failed to attend conferences without explanation and failed to comply with the Directions of the Commission.
The Respondent on the other hand has attended two conferences in the matter and will suffer ongoing prejudice should it be asked to continue to participate in the proceeding when Mr Pajune is not.
I consider that Mr Pajune has been provided with procedural fairness, having been provided with the submissions made by the Respondent, been given several days to provide a response, and, without requesting it, a further opportunity to provide that response when he initially failed to do so. He has not responded at all. At all times he has been made aware of the possibility his application may be dismissed for his failure to participate in it and failure to follow Directions.
Mr Pajune’s application is dismissed, and an order[3] will issue to that effect with this decision.
COMMISSIONER
Matter determined on the papers
[1] see for example Viavattene v Health Care Australia [2013] FWCFB 2532 [39]; Rebecca Tomas v Symbian Health[2011] FWA 5458 [57]; Brock Auguston v Castleross Construction Pty Ltd[2024] FWC 1460
[2] [2024] FWC 1302
[3] PR783854
Printed by authority of the Commonwealth Government Printer
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