Richard Craig (Rick) Adam v Zoom Recruitment Industrial WA Pty Ltd
[2022] FWC 730
| [2022] FWC 730 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Richard Craig (Rick) Adam
v
Zoom Recruitment Industrial WA Pty Ltd
(C2022/987)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 1 APRIL 2022 |
Application to deal with a general protections dispute involving dismissal – extension of time
– application dismissed pursuant to s.587.
On 7 February 2022, Mr Richard Craig (Rick) Adam (Applicant) lodged an application pursuant to s.365 of the Fair Work Act (Cth) (Act), for the Commission to deal with a general protections dispute involving dismissal from his employment with Zoom Recruitment Industrial WA Pty Ltd (Respondent).
I have determined to dismiss the application pursuant to s.587 of the Act. The reasons for this decision follow.
History of the claim
A general protections application involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.366 of the Act. It is not contentious that the Applicant’s dismissal took effect on 25 November 2021. The Applicant did not lodge his application until 7 February 2022. Accordingly, the period of 21 days ended at midnight on 16 December 2021 and the application was lodged 53 days out of time.
The Applicant acknowledged his delay in his Form F8 and stated that the reasoning for the delay was because he had been misinformed as to the company he had named as the respondent. The Applicant requested that the Commission allow a further period for the application to be made pursuant to s.366(2) (Extension of Time Application). The Respondent opposed the Extension of Time Application. Additionally, the Respondent raised a further jurisdictional objection, being that Mr Adam had not been dismissed as that term is defined in s.386 of the Act (No Dismissal Objection). Conciliation was opposed by the Respondent pending a determination of the jurisdictional objections. Accordingly, on 28 February 2022 the Extension of Time Application and the No Dismissal Objection were programmed for hearing and materials were directed to be filed (Directions).
A copy of the Directions is set out in Annexure A to this decision.
On 15 March 2022 the Applicant failed to file materials in respect of the Extension of Time application as per the Directions.
On 17 March 2022 correspondence was sent from my chambers to Mr Adam informing him that the Commission had not received his material in accordance with the Directions and he was to file those materials by close of business 18 March 2022. Mr Adam did not file any material on 18 March 2022.
At 10.00am, 18 March 2022 a notice of listing was sent notifying the parties of a mention hearing (Mention) to be conducted by telephone at 12.00pm, 22 March 2022. The parties were requested to confirm attendance for the scheduled Mention via email by close of business that day.
Mr Adam attended the Mention at 12.00pm, 22 March 2022. I explained that the Mention was listed for the benefit of Mr Adam. Filing dates were extended and the process of filing explained to Mr Adam. Mr Adam appeared to understand that further directions would be sent out later that day containing instructions for filing of materials address the extension of Time Application and the No Dismissal Objection. Following an email Mr Adam sent on 15 March 2022 in response to the Respondent’s submissions, I raised with Mr Adam to need ensure appropriate language was used before the Commission and in correspondence with it.
At 2.31pm on 22 March 2022 correspondence was sent from my chambers to the parties attaching further directions extending the filing due dates (Amended Directions) and providing relevant sections of the Act and relevant forms to be completed in accordance with the Amended Directions.
At 3.40pm, 22 March 2022 my chambers received the following email from Mr Adam:
“Attention: Deputy President Young
After consideration I have arrived at the conclusion that regardless of what I write, will have absolutely no bearing on your decision to grant an extension.
It has become abundantly clear that the corruption within the Government departments has indeed embedded itself within the legal fraternity.
This is additionally the key reason’s why the FWC deliberately ill-informed myself on whom I should be suing. You yourself are indeed creating all possible hurdles to deter myself from proceeding with my case, and inevitably avoid answering the most important question which by the Australian Constitution, which within itself, the judicial system is supposed to up-hold by Law.
Zoom Recruitment, and that of Linfox, and any other entity that coerce and force the illegal vaccination mandates have breached not only the Australian Constitution but indeed the Nuremberg Code.
Being the World Standard for criminal acts.The only question that requires an answer, is what Law is being utilised to justify the introduction of the coerced and forced illegal mandates. (and as you are fully aware, there is not any Law)
Zoom Recruitment and their affidavit holds no grounds, this itself would require the digital fingerprint from their Telco Dealer and that of my own to confirm the legitimacy of these supposed emails.
I have most certainly been left disgusted in your own inability to supply comprehensive information, much like the ridiculous conference call today in which you attempted to belittle myself and assert your authority in the manner in which you did. Unfortunately you have shown yourself to be nothing other than arrogant towards myself.
It has become more than clear that like the Australian Government, the Legal Fraternity are complicit in the illegal mandates.
Any faith that I once had in the judicial system has completely dissipated.I will re-evaluate the situation and address this accordingly.
Regards Rick Adam.”
At 4.51pm on 22 March 2022 in response to the above, correspondence from my chambers was sent to the Applicant (copying in the Respondent) as follows:
“The Deputy President acknowledges your email below.
If you wish to continue with your application C2022/987 please ensure that you file material in accordance with the Directions sent earlier today.
Alternatively, if you wish to discontinue the application please sign and return the attached form F50.”
At 5.24pm, 22 March 2022 my chambers received the following email from Mr Adam:
“Clearly young hasn’t read nor digested the wording within my e-mail. The mediator Mandy from my last conference call, puts this woman to shame. Corrupt a person as one could come across, as for your other documents tell young where she can put them. I have filed my disgust with the true authority’s internationally, time for the corrupt legal fraternity is about to meet it’s end.”
On 25 March 2022 the Applicant failed to file materials in respect of the Extension of Time Application in accordance with the Amended Directions.
On 28 March 2022 correspondence was sent from my chambers to the parties which set out the above history and stated the following:
“The Deputy President proposes to dismiss the Application for want of prosecution.
The Applicant has until 5pm Wednesday, 30 March 2022 to provide submissions as to why the Application ought not be dismissed. If no response is received by this time the Deputy President will dismiss the application under section 587 of the Fair Work Act 2009.”
The Applicant failed to file any submissions by 5pm on 30 March 2022 or otherwise communicate with Commission.
Legislative power to dismiss
Section 587 of the Act provides 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 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 of the Act sets out matters that the Commission must take into account when performing functions or exercising powers, including those under s.587. S.578 provides as follows:
“578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
a) the objects of this Act, and any objects of the part of this Act; and
b) equity, good conscience and the merits of the matter; and
c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
Consideration
Section 587 confers a sufficiently broad discretion to allow an application under s.365 to be dismissed for want of prosecution by an applicant, in an appropriate case. However, I consider that such discretion ought be exercised with caution and having regard to the matters the Commission is required to take into account in the performance of its functions.
The objects of the general protections provisions at Part 3-1 of the Act include to protect workplace rights and provide protection from workplace discrimination. The Commission’s role in a general protections claim involving dismissal is to assist in dispute resolution provided application was made within the statutory timeframe or such further time as the Commission allows.
As the historical context reveals, the Applicant on multiple occasions did not file his application within the timeframe directed. Further, from the Applicant’s communications with my chambers, most specifically the statement that “as for your other documents tell young where she can put them”, I infer that Mr Adam does not intend to file any material in support of the Extension of Time Application or in response to the No Dismissal Objection.
With regard to the objects of Part 3-1 and taking into account fairness, justice, equity and good conscience for both employers and employees, I consider that the Commission has afforded ample opportunity to the Applicant to seek an extension of time and ultimately prosecute his general protections claim. Mr Adam was placed on notice of the consequences of his non-compliance and still failed to respond. The Applicant’s non-participation in the Commission’s processes has required the Respondent to expend resources in continuing to respond to a claim that the Applicant no longer seems to have any intention of prosecuting.
For the above reasons, I have determined that the application should be dismissed. I order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR739917>
Annexure A
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