Sekola Havili v East Arm Civil Pty Ltd

[2022] FWC 1457

[2022] FWC 1457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sekola Havili
v

East Arm Civil Pty Ltd

(C2022/746)

DEPUTY PRESIDENT BOYCE SYDNEY, 9 JUNE 2022

Application to deal with contraventions involving dismissal

1. On 25 January 2022, Sekola Havili (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission), being a general protections application involving dismissal (Application). The Applicant commenced employment with East Arm Civil Pty Ltd (Respondent) on 6 October 2021 and was dismissed on 12 December 2022.

1. The matter was allocated to the General Protections Team on 27 January 2022. On 21 February 2022, a notice of listing was dispatched to the parties regarding the staff conciliation on 3 May 2022. Following the staff conciliation, the parties were advised that if the matter remained unresolved, the Application would be allocated to a Member of the Commission. On 20 May 2022, the Commission attempted to contact the Applicant via telephone and email regarding the status of the matter but did not receive a response. On 24 May 2022, the Applicant was once again unresponsive to a telephone call from the Commission regarding the status of the matter.

1. The matter was allocated to my Chambers on 24 May 2022. A notice of listing and directions (Directions) were issued to the parties on the same day, with the matter listed for Hearing regarding the Application on 30 June 2022.

1. Order [2] of the Directions issued 24 May 2022 read as follows:

“[2]       By 4.00pm AEST on Tuesday, 7 June 2022, the Applicant is to either:

• advise the Associate of Deputy President Boyce by email that the Applicant discontinues this matter; or

• 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.

… Should the Applicant fail to comply with Order 1(a) or (b) above, then the matter may be dismissed without further notice to the Applicant.”

1. Chambers received no correspondence from the Applicant in compliance with the foregoing Order.

1. On Wednesday, 8 June 2022, the Applicant was sent an email (Show Cause Email) noting that the Applicant had failed to comply with Directions, and issuing further a direction 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 12:00pm AEST Tomorrow 9 June 2022”

1. The Applicant was notified in the Show Cause Email that if they do “not comply with [the foregoing direction], or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

Legislative Provisions

1. “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.”

2. 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.”[1]

Consideration

1. As the Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting their case, or to explain their non-compliance with directions, I have decided to dismiss this Application.

1. 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 has now reached the level that the Respondent’s case is prejudiced. Further, in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with repeated opportunities to prosecute their case, and/or contact the Commission to explain their non-compliance, but has instead (including by his silence) expressed a clear disinterest in process and procedure. Accordingly, 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 with this decision.

DEPUTY PRESIDENT

[1] See McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, [9].

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