Sebastian Naranjo García v RAF's Express Pty Ltd
[2023] FWC 1624
•5 JULY 2023
| [2023] FWC 1624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sebastian Naranjo García
v
RAF’s Express Pty Ltd
(C2023/2855)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 5 JULY 2023 |
Application to deal with contraventions involving dismissal
Background
On 18 May 2023, Mr Sebastian Naranjo García (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal. Mr García commenced employment with RAF’s Express Pty Ltd (Respondent) on 15 December 2022 and claims to have been dismissed on 27 April 2023.
The Respondent contends that the Applicant was not dismissed, or in the alternative, that any dismissal was effective from 26 April 2023 such that the application was made out of time.
The matter was allocated to my Chambers on 21 June 2023. A notice of listing and directions were issued to the parties on 21 June 2023, with the matter listed for hearing to resolve the out of time objection on 13 July 2023.
Direction [1] of the Directions issued 21 June 2023 read as follows:
“[1] By 4.00pm AEST on Wednesday, 28 June 2023, the Applicant is to either:
(a) advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or
(b) 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 [1].
On Thursday, 29 June 2023, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with directions, and issuing further directions for the Applicant to:
“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEST Today, 29 June 2023.”
Later that day, Chambers received the following response from the Applicant in compliance with the Show Cause Email:
“Dear Commissioner
English is not my first language. I am seeking legal advice. I do not understand the reason for the objection hearing. Can I please have an extension until 4.00PM Monday 3 July 2023 to provide a response.”
On Friday, 30 June 2023, the Applicant was sent a further email in response which relevantly stated (Further Show Cause Email):
“The Deputy President grants an extension until 4.00pm AEST, Monday 3 July 2023 to comply with the issued Directions or your matter will be dismissed.
It is noted that an inability or failure to obtain legal advice is not a basis upon which the compliance with the direction will be excused.”
Chambers received no respect in respect of the Further Show Cause Email.
Legislative Provisions
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.”
In Rebecca Tomas v Symbian Health [2011] FWA 5458, Commissioner Gooley stated the following with respect to the operation of s.587:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia 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.”i
Consideration
As the Applicant has made no attempt to comply with the Show Cause Email or the Further Show Cause Email, and has failed to explain his non-compliance, 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 non-compliance with directions is wholly unexplained and therefore unjustified. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with an appropriate opportunity to advance or 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
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