Robert Gualdi v Hire a Hubby Franchise Operations Pty Ltd
[2023] FWC 520
•2 MARCH 2023
| [2023] FWC 520 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Gualdi
v
Hire A Hubby Franchise Operations Pty Ltd
(U2022/10932)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 2 MARCH 2023 |
Application for an unfair dismissal remedy – non-compliance with directions – failure to explain non-compliance – application dismissed
Background
On 15 November 2022, Mr Robert Gualdi (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application).
The matter was listed for a conciliation conducted by the Fair Work Commission on 15 December 2022. The day before the Applicant advised he was not available at that time. The conciliation was rescheduled for 6 February 2023. The Applicant did not dial into the conference and was unable to be contacted by phone.
The matter was allocated to my Chambers on 13 February 2023. A notice of listing and directions were issued to the parties on 13 February 2023, with the matter listed for Hearing on 27 March 2023.
Direction [2] of the Directions issued 13 February 2023 reads as follows:
“[2] By 4.00pm AEDT on Monday, 27 February 2023, the Applicant must file with the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in support of the Applicant’s out of time application.”
Chambers received no correspondence from the Applicant in compliance with Direction [2].
On 22 February 2023, the Applicant was sent an email (Show Cause Email), identifying that the Applicant had failed to comply with Direction [2], and issuing a further direction for the Applicant to:
“[1] The Applicant is to file with the Commission, and serve upon the Respondent, written submissions regarding their non-compliance with directions. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 28 February 2023.
The Applicant was notified in the Show Cause Email that “If the Applicant does not comply with the foregoing Order, or if the Deputy President is not satisfied by the Applicant’s submissions, this will result in the Unfair Dismissal Application filed by the Applicant being dismissed without further notice to the Applicant.”
Chambers received no correspondence from the Applicant in response to the foregoing request.
Legislative Provisions
“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.
[58] In determining unfair dismissal applications [the Fair Work Commission] is required to afford a fair go all round to both employers and employees. Further, [the Fair Work Commission] must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”[1]
Consideration
As the Applicant has made no attempt to comply with directions to attend the conciliation conference, file and serve submissions and evidence prosecuting his case, or to explain his non-compliance with directions, I have decided to dismiss his Application.
In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with directions is wholly unexplained. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute his case, and/or contact the Commission to explain his non-compliance, but has instead (including by his silence) expressed a clear disinterest in process, procedure and the prosecution of his own case.
Pursuant to s.587(3)(a) of the Act, the Application is dismissed for want of prosecution. An Order dismissing the Application will be published contemporaneously with this decision.
DEPUTY PRESIDENT
[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].
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