Taniela Moala v Opal

[2020] FWC 6031

[2020] FWC 6031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Taniela Moala
v
Opal
(U2020/12832)

COMMISSIONER WILSON MELBOURNE, 17 NOVEMBER 2020

Application for an unfair dismissal remedy – application dismissed for want of prosecution.

[1] On 24 September 2020, Mr Taniela Moala filed an application with the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application named the Respondent company as “Opal” and the relevant contact person as “Mr Opal Opal”. No ABN or ACN was listed on the application and no supporting documentation was provided with the application to identify the Respondent employer.

[3] On 2 October 2020, the Form F3 was filed by the Opal Group to which the Form F2 was served by the Commission’s Registry. Internal legal counsel for Opal Group submitted that Mr Moala was never an employee of any entity in the Opal Group of companies to which the Application was provided. Opal Group objected to the application on the grounds that the Applicant was not an employee and that the Applicant failed to properly complete the application with the details of the alleged Respondent.

[4] The matter was initially listed for a staff conciliation on Monday, 12 October 2020. The conciliation was vacated by the Commission on the day of conciliation due to the unavailability of a staff conciliator to conduct the conciliation. The matter was relisted for a staff conciliation on Wednesday, 21 October 2020. The conciliation could not take place due to the non-attendance of Mr Moala.

[5] The matter was referred to me on Tuesday, 27 October 2020 and Directions for the filing of material were issued on Friday, 30 October 2020.

[6] On Friday, 30 October 2020 internal legal counsel for Opal Group contacted my Chambers by telephone and email. Opal Group requested “that steps be taken to determine whether or not the purported Applicant is a real person and whether he or she genuinely intends to pursue this claim and, if so, against which legal entity.” 1

[7] Upon review of the case file, I determined it appropriate to set aside the filing Directions and to issue a Direction to Mr Moala to file in the Commission by 4.00PM Friday, 6 November 2020 evidence that would show the identity of his former employer. Such evidence could be a payslip showing the identity of his former employer.

[8] Mr Moala was put on notice that if he failed to file as Directed, the Respondent may choose to make an application to have his s.394 application dismissed.

[9] No material was filed by Mr Moala by 4.00PM on Friday, 6 November 2020. My Chambers sent an email to Mr Moala after the 4.00PM deadline to advise that he was non-compliant with a Direction of the Commission and he must urgently take steps to provide his material by 10.00AM Monday, 9 November 2020.

[10] No material was filed by Mr Moala by 10.00AM on Monday, 9 November 2020.

[11] My Associate attempted to contact Mr Moala by telephone on three occasions on Monday, 9 November 2020 to follow up the overdue material. All three calls were not answered, and no voicemail facility was available to leave a message. No return call was received.

[12] A second email was sent to Mr Moala on Monday, 9 November 2020 requesting he contact the Commission urgently to advise when he intended to file his material and notifying that his application was at risk of being dismissed. No reply was received.

[13] Later on Monday, 9 November 2020, my Chambers wrote to Mr Moala and the Opal Group to put both parties on notice that I was considering dismissing Mr Moala’s unfair dismissal application under s.587 of the Act and inviting either party if they wished any further information or material to be taken into account to provide that material by 4.00PM Friday, 13 November 2020.

[14] The Opal Group did not file any further material to be taken into account.

[15] To date, no material has been received from Mr Moala and Mr Moala has not contacted the Commission since the filing of his application.

[16] 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.”

[17] The words ‘without limiting when the FWC may dismiss an application’ in s.587(1) of the Act make clear that the jurisdiction of the Commission to dismiss an application is not restricted to the circumstances set out in ss.587(1)(a), (b) and (c).

[18] The Full Bench in Sayer v Melsteel Pty Ltd 2 held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case without examining the merits.

[19] In Viavattene v Health Care Australia 3 the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”

[20] Mr Moala has failed to respond to all attempts made by the Commission to contact him since his application was filed in the Commission. There is no reasonable explanation as to why Mr Moala did not respond to the emails sent to him or return the phone calls made to him. The emails were sent to the email address nominated on Mr Moala’s application and the telephone calls were made to the mobile telephone number provided on the application form.

[21] Mr Moala has shown no willingness to prosecute his case and has provided no explanation for his failure to comply with the Direction of the Commission. In these circumstances, I am satisfied that Mr Moala has failed to prosecute his application. In accordance with s.587 of the Act, the application is dismissed for want of prosecution. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   Email from Opal Group to the Fair Work Commission, 30 October 2020.

 2   [2011] FWAFB 7498 at [19].

 3   [2013] FWCFB 2532.