Pedro Alfaro v ATM Cleaning Management Pty Ltd
[2024] FWC 148
•18 JANUARY 2024
| [2024] FWC 148 [Note: An appeal pursuant to s.604 (C2024/764) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.773—Termination of employment
Pedro Alfaro
v
ATM Cleaning Management Pty Ltd
(C2023/7353)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 18 JANUARY 2024 |
Application to deal with an unlawful termination dispute – applicant’s conduct unsatisfactory and unacceptable – application dismissed
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).
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).
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.
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
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.”
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.”
Consideration
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.
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.
DEPUTY PRESIDENT
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