Mr Justin Famularo v Youth Empowered Towards Independence Incorporated
[2024] FWC 2185
•16 AUGUST 2024
| [2024] FWC 2185 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Justin Famularo
v
Youth Empowered Towards Independence Incorporated
(C2024/2873)
| COMMISSIONER CONNOLLY | MELBOURNE, 16 AUGUST 2024 |
Application to deal with contraventions involving dismissal - application dismissed pursuant to s.587
On 2 May 2024, Mr Justin Famularo (the Applicant) lodged a general protections application against Youth Empowered Towards Independence Incorporated (the Respondent) under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that on 2 May 2024, he was dismissed by the Respondent in contravention of the general protections provisions of the Act.
On 24 May 2024, the Respondent filed a Form F8A Response and raised a jurisdictional objection, asserting that the Applicant was not dismissed.
The matter was allocated to my chambers on 6 June 2024 and Directions to determine the jurisdictional objection were issued on 13 June 2024. The matter was listed for an initial Mention on 21 June 2024 and a Hearing on 1 August 2024. Paragraph [11] of the Directions advised that ‘Compliance with these Directions is mandatory and a failure to comply is likely to disadvantage the party concerned’.
The Applicant did not attend the Mention at 12:30pm on 21 June 2024. Between 12:25pm and 12:33pm, my Chambers attempted to contact the Applicant several times on the mobile phone number that was provided in his Form F8 application. The Applicant was unreachable. The Applicant was also sent the following correspondence ahead of the Mention:
“Dear Mr Famularo,
RE: C2024/2873 - Mr Justin Famularo v Youth Empowered Towards Independence Incorporated
I refer to the matter above and the Mention listed before Commissioner Connolly at 12:30PM (VIC Time) TODAY, 21 June 2024.
I have attempted to contact your telephone number several times and have not been successful.
Please note that if you do not attend the Mention by 12:35PM, the Commissioner will proceed without you.
Kind regards…”
The Mention was conducted without the Applicant.
The Applicant’s initial submissions were due to be filed to Chambers and served on the Respondent by 3 July 2024. The Applicant did not file any submissions, nor had he communicated with the Commission.
On 10 July 2024 at 11:18am, my Chambers sent the Applicant a non-compliance email in the following terms:
“Dear Mr Famularo,
RE: C2024/2873 - Mr Justin Famularo v Youth Empowered Towards Independence Incorporated
I refer to the matter above and Directions attached, issued on 13 June 2024.
As per the Directions, you were required to file submissions by 4:00pm on Wednesday, 3 July 2024. You did not comply with these Directions as the Commissioner is yet to receive any material from you.
If you intend to file submissions, you should do so without further delay.
If you do not comply with the Directions, and do not file your submissions, by 4:00pm TODAY, 10 July 2024, the matter will be listed for a Non-compliance Hearing.
Please note, if you do not attend this Hearing your application is likely to be dismissed entirely.
Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance as soon as practicable.
Kind regards…”
The Applicant did not respond.
On 17 July 2024, the Applicant was then sent the following email and the matter was listed for a Non-compliance Hearing on 18 July 2024 at 12:30pm:
“Dear Mr Famularo,
RE: C2024/2873 - Mr Justin Famularo v Youth Empowered Towards Independence Incorporated
I refer to the matter above and correspondence below.
The Commissioner has determined to list this matter for a Non-compliance Hearing on Thursday, 18 July 2024 at 12:30PM (VIC Time) via Video. Please allow 30 minutes for this Hearing.
A Notice of Listing to this effect is attached.
The Applicant is advised that if you do not attend this Hearing your application is likely to be dismissed entirely.
Alternatively, if you do not intend to pursue your application further, please file a signed Form F50 Notice of Discontinuance or advise Chambers that you wish to discontinue as soon as practicable.
Kind regards…”
The Applicant did not respond.
At 11:12am on 18 July 2024, my Chambers attempted to contact the Applicant via telephone several times, however, the Applicant was again unreachable. The Applicant did not attend the Non-compliance Hearing. The Hearing on 1 August 2024 was vacated.
To this date, no communication has been received from the Applicant since 2 May 2024, the day his application was lodged.
s.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 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 McLeod v Kulgera Trading Company Pty Ltd,[1] Vice President Catanzariti held that s.587 was sufficiently broad to allow an application in a s.365 matter to be dismissed for want of prosecution by the Applicant.
In the present circumstances, the Applicant has clearly demonstrated an unwillingness to prosecute his case. The principle of ‘a fair go all round’ applies to both employers and employees. I find that the Applicant’s non-participation in the Commission’s processes has already required the Respondent to expend resources responding to a claim that the Applicant initiated and appears to have had no intention of following through with. The Applicant has had a fair opportunity to respond to the concerns of the Commission and has chosen not to on every occasion.
I adopt the approach taken by Vice President Catanzariti and find that “fairness, justice, equity and good conscience”[2] warrant the dismissal of this application.
Order
The application lodged by Mr Justin Famularo pursuant to s.365 of the Act on 2 May 2024 is dismissed for want of prosecution pursuant to s.587(3)(a) of the Act.
COMMISSIONER
[1] [2014] FWC 2112.
[2] Ibid at [10].
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