Pedro Alfaro v ATM Cleaning Management Pty Ltd
[2024] FWCFB 236
•26 APRIL 2024
| [2024] FWCFB 236 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Pedro Alfaro
v
ATM Cleaning Management Pty Ltd
(C2024/764)
| DEPUTY PRESIDENT SAUNDERS | SYDNEY, 26 APRIL 2024 |
Appeal against decision [2023] FWC 148 of Deputy President Boyce at Sydney on 18 January 2024 in matter number C2023/7353
On 29 November 2023 Mr Alfaro Pedro made an application under section 773 of the Fair Work Act 2009 (Act) against ATM Cleaning Management Pty Ltd. ATM Cleaning Management Pty Ltd raised jurisdictional objections to Mr Alfaro’s application on the basis that it was not ever Mr Alfaro’s employer and, in the alternative, Mr Alfaro was prohibited from pursuing his unlawful termination application due to the operation of s 723 of the Act.
Deputy President Boyce scheduled a hearing, on 9 February 2024, to deal with the respondent’s jurisdictional objections and made directions requiring the parties to each file materials prior to the hearing.
On 17 January 2024 Mr Alfaro sent an email to Deputy President Boyce’s chambers indicating that he would not be filing any materials in accordance with the directions made, or attending the scheduled hearing, and that “if the Deputy President likes [he can] dismiss my application today. Please do so.”
On 18 January 2024 Deputy President Boyce dismissed Mr Alfaro’s application, publishing his reasons for doing so in Alfaro v ATM Cleaning Management [2024] FWC 148.
Mr Alfaro has applied for permission under section 604 of the Act to appeal the decision of Deputy President Boyce.
The Deputy President’s reasons for dismissing Mr Alfaro’s application were succinctly stated in his published decision:
[1] On 29 November 2023, Mr Pedro Alfaro (Applicant), filed an application pursuant to s.773 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application to deal with an alleged unlawful termination dispute (Application). The Respondent to the Application is ATM Cleaning Management Pty Ltd (Respondent).
[2] On 20 December 2023, the Respondent filed a Form F9A, being a response to the Application. The Respondent objects to the Application, and says that the Applicant relevantly was not an “employee” of the Respondent, including for the purposes of Part 4-6 of the Act. Further, the Respondent says that even if the Applicant was relevantly an “employee” of the Respondent (including for the purposes of Part 4-6 of the Act), the Applicant is prohibited from pressing his unlawful termination application before the Commission due to the operation of s.723 of the Act which provides that “A person must not make an unlawful termination application in relation to conduct if the person is [or was at the time that the unlawful termination application was filed] entitled to make a general protections court application in relation to the conduct” (noting Part 3-1 of the Act, and more specifically, ss.337-342, 351-352 and 365 of the Act).
[3] On 22 December 2023 directions were issued to parties, and a hearing was set down for 9 February 2024 to deal with the Respondent’s objections. The Respondent filed materials in accordance with the directions.
[4] On 17 January 2024, the Applicant emailed a letter to Chambers (dated 16 January 2024) which states that the Applicant will not be filing any materials (due to be filed and served by him on 22 January 2024, in accordance with the 22 December 2023 directions), and that the Applicant will not be attending or otherwise participating in the hearing listed for 9 February 2024. In that letter the Applicant also states “If Mr Boyce likes can [sic] dismiss my Application today Please do so.”
Legislative Provisions
[5] 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.”
[6]In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587 of the Act:
“[57] Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”
Considerations
[7]The Applicant has advised the Commission in no uncertain terms that he does not intend to engage in these proceedings by complying with directions and/or attending upon the hearing. The Applicant’s conduct is both unsatisfactory and unacceptable. I therefore consider it necessary to dismiss the Application. It is the Applicant’s Application to prosecute. If he refuses (by his own words or conduct) to do so, there is absolutely no utility in his case proceeding any further in that it is nothing other than a futile waste of time, energy and resources for all involved.
[8] Pursuant to s.587(3)(a) of the Act, the Application is dismissed. An Order dismissing the Application will be published contemporaneously with this decision.
Most of the material filed by Mr Alfaro in the appeal proceedings refer to his dismissal, the identity of his alleged employer, and alleged underpayment of wages owing to him by the respondent. This material is not directly relevant to the matters this Full Bench must decide.
The primary parts of Mr Alfaro's submissions that could be considered relevant to his appeal are:
6. This Appeal is brought under the Fair Work Act 2009, Section 604, due to the conduct of the matters by Deputy President Gerard Boyce whom from about 6 December 2023, was seeking to force the Appellant into a hearing before the Respondent ATM Cleaning Management Pty Ltd, filed Employers Response, acted bias and oppressive and in giving the Respondent time to 20 December 2023 to file Employers Response that were seeking to cover up and conceal the contraventions of the Fair Work Act 2009, by false allegations relating to the employment of the Appellant Alfaro.
7. It is submitted by the Appellant Alfaro that the contraventions of the Fair Work Act 2009, by the Respondent ATM Cleaning Management Pty Ltd are serious to warrant the grant of the Appeal, from the orders made on 18 January 2024, and corrected on 19 January 2024.
8. The Appellant Alfaro submits that an examination of the Decision dated 18 January 2024, made by Deputy President Boyce, makes a number of allegation that includes that the Application was vexatious, frivolous and was not made in accordance to the Act, but the Decision of 18 January 2024, does not mentioned the allegation of threats and violence made on 12 January 2024, in an email from Akile Numan sent to the Chambers of Deputy President Boyce, and for which no evidence has been produced to support those allegations.
Some of these matters need further explanation. The Deputy President made directions to prepare the matter for a hearing to determine the jurisdictional objections raised by the respondent. The “allegation of threats and violence made on 12 January 2024” is a reference to a concern raised by the respondent’s representative by email. On 12 January 2024 the respondent asked for the hearing to be conducted, by telephone, using Microsoft Teams because of “a concern for [the] personal safety” of the persons attending the hearing on behalf of the respondent. It was alleged that Mr Alfaro had made a number of threats towards Ms An, General Manager of the respondent, and the respondent’s representative. The respondent’s request was forwarded to Mr Alfaro, who then asked, on 15 January 2024, for details of the alleged threats. By email sent at 9:36am on 15 January 2024, the parties were informed by Deputy President Boyce’s chambers that the respondent’s request for the hearing to take place using Microsoft Teams would be considered after Mr Alfaro filed his “evidence and submissions (due on 22 January 2024)”. On 16 January 2024 Mr Alfaro sent a further email indicating that he would not participate any further in the proceedings and he asked the Deputy President to dismiss his application.
Both the respondent’s response to Mr Alfaro’s application and its submissions in support of its jurisdictional objections were provided to Mr Alfaro well before he asked the Deputy President to dismiss his application.
A hearing for the appeal took place on 17 April 2024. Mr Alfaro represented himself and Ms An appeared for the respondent.
Not long after the appeal hearing commenced Mr Alfaro picked up his materials and left the courtroom, telling the members of the Full Bench “I will see you in Court”, which was a reference to proceedings Mr Alfaro said he will commence in the Federal Court of Australia.
Consideration
Having reviewed the decision of Deputy President Boyce, the materials filed by Mr Alfaro and the limited oral submissions made by Mr Alfaro at the hearing, we have decided not to grant Mr Alfaro permission to appeal.
In our view this is not an appeal that raises any matter of public interest, nor is there any other basis on which permission to appeal should be granted.
Mr Alfaro has not identified any appealable error. It was within the discretion of the Deputy President to dismiss Mr Alfaro’s application, particularly given that Mr Alfaro asked the Deputy President to do so and Mr Alfaro had clearly communicated his intention not to prosecute his case before the Fair Work Commission.
Accordingly, permission to appeal is refused.
Our decision to refuse permission to appeal does not have any impact on any underpayment of wages claim which Mr Alfaro may choose to pursue against the respondent in a court of competent jurisdiction. Mr Alfaro does not need a certificate from the Fair Work Commission to pursue such a claim in a court.
DEPUTY PRESIDENT
Appearances:
Mr P Alfaro, Applicant
Ms M An, for the Respondent
Hearing details:
2024.
Sydney
April 17
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