Mr Polihronis Kiparoglou v G.T.S. Freight Management Pty Ltd
[2024] FWC 987
•16 APRIL 2024
| [2024] FWC 987 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Polihronis Kiparoglou
v
G.T.S. Freight Management Pty Ltd
(U2023/10813)
| COMMISSIONER THORNTON | ADELAIDE, 16 APRIL 2024 |
Application for an unfair dismissal remedy – section 587 – application dismissed
On 1 November 2023, Mr Polihronis Kiparoglou (the Applicant) applied to the Fair Work Commission (the Commission) under s 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by G.T.S. Freight Management Pty Ltd (the Respondent).
On 3 November 2023, the Applicant lodged a general protections application under s.365 of the Act alleging he had been dismissed in contravention of the general protections provisions of the Act.
The Respondent raised a jurisdictional objection to the unfair dismissal application on the basis that the Applicant had lodged multiple claims in the Commission with respect to his dismissal by the Respondent. Both applications were lodged by different representatives on the Applicant’s behalf.
Both matters were allocated to my Chambers and I listed them jointly for a directions hearing on 4 December 2023.
The Applicant’s representative for the general protections application filed a Form F50 – Notice of Discontinuance in the Commission on 1 December 2023. My Chambers contacted the parties to advise them that the directions hearing would proceed on 4 December 2023 and would address the merits hearing rather than the now resolved jurisdictional objection.
On 2 December 2023, the Applicant’s representative for the unfair dismissal application filed a Form F54, confirming the representative was no longer acting on behalf of the Applicant.
On 4 December 2024, the directions hearing was adjourned after the Applicant failed to attend.
Chambers attempted to contact the Applicant by telephone on 7 December 2023 to reschedule the directions hearing but there was no answer. Further calls were made to the Applicant on 12 December 2023 and 22 December 2023 with no answer, and with a voicemail being left requesting a response to reschedule the Applicant’s matter before the Commission. No return phone calls were made by the Applicant.
On 22 December 2023, an email was sent to the Applicant indicating that Chambers had been attempting to contact him regarding his matter. My Chambers requested that the Applicant contact the Commission so that his matter could be relisted or alternatively, if he did not wish to pursue his application, that he indicate his intention to discontinue the matter. No response to this email was received from the Applicant.
On 11 January 2024, a telephone call was made to the Applicant as he had not contacted Chambers to indicate his intention, but there was no answer and no opportunity to leave a voicemail. An email was sent to the Applicant requesting he contact Chambers to indicate his intentions regarding his application as the Commission had not received any contact from him. The Applicant was cautioned that if he did not engage with the Commission or discontinue his application, a decision may be published dismissing his claim as he had failed to prosecute his claim. No response to this email was received from the Applicant.
A final telephone call was made to the Applicant on 15 March 2024, leaving a voicemail requesting he get in touch with the Commission urgently about his matter. An email was also sent stating this was the Applicant’s final opportunity to indicate whether he intended to engage with the application he had filed in the Commission. The Applicant was cautioned that if he did not contact Chambers before close of business on 22 March 2024, a decision dismissing his application would be published. No response was received from the Applicant prior to the close of business on 22 March 2024 or at any time after this deadline.
The Applicant has not made any efforts to contact the Commission and it seems has not engaged with the matter beyond instructing a representative to file the application on his behalf.
Section 587 of the Act states 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.
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, 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.”
Section 587 does not limit the circumstances in which the Commission can consider dismissing an application.[1] The Commission has the power to dismiss an application where there is an unreasonable or unexplained non-compliance on its own initiative.[2] There is no legislative or common law requirement that the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings that they have initiated.[3]
In this matter, I consider it appropriate to exercise my discretion to dismiss Mr Kiparoglou’s application for want of prosecution in accordance with s.587(3)(a) of the Act.
The application is therefore dismissed. An order giving effect to this decision has been published.[4]
COMMISSIONER
[1] McLeod v Kulgera Trading Company Pty Ltd[2014] FWC 2112; Tomas v Symbion Health[2011] FWA 5458, at [57]-[58].
[2] Fair Work Act 2009 (Cth) s 587(3)(a); Stefanidakis v D&M Plant Hire[2020] FWC 4868 at [20].
[3] Viavattene v Health Care Australia[2013] FWCFB 2532, at [39].
[4] PR773539.
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