Shamouiel Esmaill v Sardulgarh

[2021] FWC 6632

[2021] FWC 6632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shamouiel Esmaill
v
Sardulgarh
(U2021/9266)

DEPUTY PRESIDENT BOYCE SYDNEY, 20 DECEMBER 2021

Application for an unfair dismissal remedy – non-compliance with directions – failure to explain non-compliance – application dismissed.

Background

[1] On 15 October 2021, Mr Shamouiel Esmaill (Applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Applicant claims he was unfairly dismissed by his employer, Sardulgarh (Respondent) on 7 October 2021. In the Form F3 Response filed with the Commission on 14 November 2021, the Respondent raised the jurisdictional objection that the Applicant was an independent contractor, not an employee.

[2] The matter was allocated to my Chambers on 16 November 2021. A notice of listing and directions were issued to the parties on 17 November 2021, with the matter listed for hearing to deal with the jurisdictional objection and the merits of the application on 4 January 2022.

[3] Order [3] of the Directions issued 17 November 2021 read as follows:

“[3] By 4.00pm AEDT on Wednesday, 15 December 2021, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection(s) raised, and any documents in support of the Applicant’s substantive application.”

[4] Chambers received no correspondence from the Applicant in compliance with Order [3].

[5] On 16 December 2021 the Applicant was sent an email (Show Cause Email), noting that the Applicant had failed to comply with directions, as follows:

“[1] … 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 AEDT Today, Thursday 16 December 2021.

[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.”

[6] On 17 December 2021, my Associate telephoned the Applicant to follow-up the Show Cause Email. The Applicant did not initially respond but called back and indicated to my Associate that he had not checked his emails lately. My Associate asked the Applicant to check his emails and reply accordingly.

[7] Shortly afterwards on the same day, the Applicant was sent a further show cause email (Final Show Cause Email), as follows:

“Chambers has received no correspondence from you in compliance with either the Directions issued on 17 November 2021, or the further Directions issued below on 16 December 2021.

The Deputy President provides the following final Directions:

[1] The Applicant is 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 AEDT Today, Friday 17 December 2021.

[2] If the Applicant does not comply with Order [1] above, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter will be dismissed without further notice.”

[8] My Associate received a phone call from the Applicant at 3:50pm on 17 December 2021, in which the Applicant asked whether he was supposed to file the application form again. My Associate explained to the Applicant that he was supposed to have filed submissions and any evidence or material he had to support his claim before the Commission by 15 December 2021, and that the emails he had received since that date asked him to explain why he had not complied with this direction, and indeed with any other directions.

[9] The Applicant then sent the following email at 3:56pm on 17 December 2021:

“Pay for Holiday and Sick days. Been kicked for no reason. I did ask for it, but he said you weren't entitled to it, except for 3 of my sick days. I spoke to him, and he said no. That is why I sent you, to further investigate this. I just want to be paid.”

Legislative Provisions

[10] 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.”

[11] 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

[12] The Applicant has made no attempt to comply with directions to file and serve submissions and evidence prosecuting his case. I also note that the Applicant’s short response on 17 December 2021 indicates that the relief he seeks concerns the recovery of alleged underpayments of wages, being a claim outside of the Commission’s jurisdiction to resolve. In accordance with the principle of a fair go all round to both employers and employees, and in taking into account fairness, justice, equity and good conscience, I find that the Applicant has been provided with the opportunity to prosecute his case, and/or explain his non-compliance to the Commission, including pursuant to warnings from my Chambers by email and multiple telephone calls. Despite this, the Applicant has been, and continues to be, unwilling or unable to comply with directions made, absent any excuse (let alone any reasonable excuse). Applications for unfair dismissal are not filed with the Commission in order for the Commission to “further investigate this”. Rather, an Applicant bears the onus to satisfy (or prove to) the Commission that he/she is entitled, as a matter of fact and law, to the relief he/she seeks.

[13] In view of the matters (including findings) set out in this decision, pursuant to s.587(3)(a) of the Act, the Applicant’s application in this matter is to be dismissed for want of prosecution. An Order dismissing the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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