Sami Yatmaz v BSA Limited

[2016] FWC 5944

[2016] FWC 5944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Sami Yatmaz
v
BSA Limited and others
(AB2016/342)

VICE PRESIDENT WATSON MELBOURNE, 30 AUGUST 2016

Application for an FWC order to stop bullying – failure to comply with directions – failure to attend hearing – application to dismiss application for order to stop bullying – Fair Work Act 2009, ss.587, 789FC.

Introduction

[1] This decision concerns an application for an order to stop bullying made under s.789FC of the Fair Work Act 2009 (the Act). The application was made by Mr Sami Yatmaz and concerns BSA Limited and two named individuals.

[2] BSA Limited opposes the application on the jurisdictional bases that Mr Yatmaz does not meet the definition of “worker” in s.789FC of the Act, he was not at work when the alleged conduct took place, and the alleged conduct was reasonable management action.

[3] On 12 August 2016 BSA Limited raised a further objection and requested that the application be dismissed on the basis that Mr Yatmaz failed to pursue his application.

Background

[4] Mr Yatmaz lodged the application for an order to stop bullying on 21 March 2016. The matter was listed for conference on 18 April 2016. Following the conference, the parties were to exchange documents and correspondence and advise whether a report back conference was required.

[5] On 22 June 2016 BSA Limited advised that it has not received a response to its communications to Mr Yatmaz, and confirmed that it wishes to pursue its jurisdictional objections.

[6] The matter was listed for jurisdiction hearing on 11 August 2016. Directions were issued for the filing of written submissions and evidence by both parties.

[7] On 7 July 2016 BSA Limited advised that Mr Yatmaz had not provided it with documents it had requested that would enable it to draft its outline of submissions. It requested that the matter be listed for Mention in order to deal with this issue.

[8] The matter was listed for Mention by telephone on 13 July 2016. Mr Yatmaz did not attend the Mention. The outcome of the Mention was that the matter would proceed to jurisdiction hearing on 11 August 2016.

[9] BSA Limited filed an outline of submissions in relation to its jurisdictional objections on 20 July 2016. Mr Yatmaz was required to file an outline of submissions and any evidence on which he intends to rely on in opposition to the jurisdictional objections by 2 August 2016. Mr Yatmaz failed to file submissions or evidence with the Commission.

[10] Neither Mr Yatmaz nor BSA Limited’s representatives attended the jurisdiction hearing on 11 August 2016.

[11] The representatives of BSA Limited were contacted by telephone and were asked to indicate BSA Limited’s position in relation to the future course of the matter in the light of Mr Yatmaz’s failure to file submissions or attend the hearing.

[12] BSA Limited submitted that Mr Yatmaz should notify the Commission whether he intends to pursue his application and to file any submissions in reply to BSA Limited’s jurisdictional objections by 4pm on 19 August 2016. BSA Limited further submitted that if Mr Yatmaz does not comply with the above, his application should be dismissed.

[13] On 12 August 2016, the Commission sent the following correspondence:

“The Commission notes that Mr Yatmaz has not filed any material in response to the jurisdictional objections of BSA Limited, and did not attend the hearing of this matter on 11 August 2016. In the circumstances the Commission makes the following directions:

1. Mr Yatmaz notify my chambers and BSA Limited’s solicitors whether he intends to pursue his claim by 5pm on Wednesday 17 August 2016.

2. If Mr Yatmaz wishes to pursue his claim he should file material in response to BSA Limited’s jurisdictional submissions by 4pm on Friday 19 August 2016.

The Commission will determine the future course of the matter in the light of responses to the above directions.”

[14] No correspondence has been received from Mr Yatmaz.

Legislative provisions

[15] The Commission is empowered to dismiss an application pursuant to s.587 of the Act, which 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.”

Should the application be dismissed?

[16] The Commission has not been assisted by the applicant’s failure to submit material in relation to the issues and both parties’ failure to attend the jurisdictional hearing. This appears to be the result of the cessation of the commercial relationship between Mr Yatmaz’s contracting entity, Skylink Communications and BSA Limited.

[17] BSA Limited previously listed Skylink Communications on its list of potential contractors for installing satellite communications devices at business and domestic premises. Mr Yatmaz was apparently the primary installer of devices when contracts were let to Skylink Communications. The original application alleges three instances of actions by BSA Limited Manager David Orfanidis of failing to provide work and interrogating Mr Yatmaz because of disagreements over installations in the period between November 2015 and March 2016.

[18] It appears that BSA Limited removed Skylink Communications from its list of potential contractors in March 2016. I am unsure whether Skylink Communications has been reinstated to the list and whether Mr Yatmaz continues to perform work in relation to that contract. Mr Yatmaz has not responded to my direction to indicate whether he wishes to pursue the application.

[19] If Skylink Communications no longer provides installation services to BSA Limited, the application, directed to future conduct, would appear to have no reasonable prospects of success. If work under the contractual arrangement has resumed and there is a reasonable prospect of repetition of conduct alleged to constitute bullying, I would expect that Mr Yatmaz would confirm that he wishes to pursue his application and participate in the proceedings. He has done neither. I find therefore that the application has no reasonable prospects of success and the application should therefore be dismissed.

Conclusion

[20] For the above reasons I order that the application by Mr Yatmaz be dismissed.

VICE PRESIDENT

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