William Anthony Rollan v Mimecast Australia Pty Ltd

[2024] FWC 1381

[2024] FWC 1381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

William Anthony Rollan
v

Mimecast Australia Pty Ltd

(U2024/4291)

DEPUTY PRESIDENT EASTON SYDNEY, 4 JUNE 2024

Application for an unfair dismissal remedy

1. On 14 April 2024, Mr William Anthony Rollan filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his application he named his employer as Mimecast Australia Pty Ltd.

1. Mimecast objected to the unfair dismissal application because it says Mr Rollan was not a direct employee of theirs, but a consultant employed by Outsourced Quality Assured Services Inc.

1. In Mr Rollan’s application form, he said the following about his employment:

“I'm a vendor and contractor employee for Mimecast Australia, under Outsourced PH, a outsourcing company in Philippines. I was accused of gross misconduct and non-performance to my duty. The decision to dismissed me as an Employee was directed by Mimecast AU to my employer. I was not treated fairly under any circumstances. Mimecast AU is directly or indirectly violated existing Labor Codes in the Philippines. Mimecast AU, Outsourced PH, as both parties through its contract has allowed me to work more than 8-hours shift, with no compensation because of the binding embedded to the contract. This resulted to my non-performance of duties, responsibilities and then later attitude towards Mimecast AU Management. Under Flexibility Clause in Fair Work Information Statement, there were no negotiations for me to enter on a flexibility arrangement, where my employment was a conditioned and not as a genuine choice. Mimecast AU has employed a direct and related, affiliation from Manager to Supervisor resulting to their biased decisions and retaliated power, against to me as a co-employee. I tried to raise the concern to Mimecast AU, then Director, Phil Clark, I was not given the opportunity. I decided to file this dismissal to your good office to achieve my goal of fair treatment and penalize Mimecast AU for unjust behavior of recommending my dismissal without due process, that impacts me and my family's livelihood or being unstable financially. Finally, Mimecast AU has Damaged my Career, as an employee, due to its unfair decision to dismiss me from my post, that was later actioned by my Employer.”

1. On 14 May 2024 email correspondence was sent to Mr Rollan in relation to the jurisdictional issue raised by the Respondent.

1. On the same day Mr Rollan responded to the correspondence agreeing that he was not directly employed by Mimecast. However Mr Rollan also indicated that he believed he was eligible to make an unfair dismissal application against Mimecast because he had previously agreed to follow Mimecast’s internal policies. Mr Rollan said:

“It is true that I am not directly employed by Mimecast and I’m employed directly by Outsourced. However, with their governing policies for equal rights for employer-employee relations, jurisdiction over my claim - Unfair Dismissal is still covered through their policies.”

1. On 16 May 2024 further correspondence was sent to Mr Rollan explaining that if he was not a direct employee of Mimecast then it was not possible for Mimecast to dismiss him. Further, if he was not dismissed by Mimecast at all then an application claiming that Mimecast unfairly dismissed him could not continue. Mr Rollan was also advised that his application may be dismissed under ss.587(1)(a) or 587(1)(c) of the Act on the basis that the application is not properly made or the application had no reasonable prospects of success. Mr Rollan was once again invited to discontinue his application or otherwise provide any evidence and submissions on why his application should not be dismissed.

1. Mr Rollan did not respond to this correspondence.
   
   

2. There has been no hearing in relation to this threshold question of whether Mr Rollan was a direct employee of Mimecast. The deficiency in Mr Rollan’s claim is apparent from the application itself and the correspondence on 14 May 2024 in which Mr Rollan agrees he was not an employee. There does not appear to be any disputed facts that are relevant to the threshold question.

Section 587

1. The relevant provisions in s.587 of the Act are 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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law, is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] and the cases cited therein).

Does Mr Rollan’s application have any reasonable prospects of success?

1. Mr Rollan is aggrieved about the fairness of his dismissal. However the fairness or unfairness of the dismissal is not relevant to whether he was a direct employee of Mimecast. The Commission cannot consider the fairness of Mr Rollan’s dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr Rollan on his Form F2 application and later correspondence with the Commission strongly indicates that he is not eligible to make an unfair dismissal application.

1. I am satisfied that Mr Rollan has been able to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587.

1. For these reasons I am satisfied that Mr Rollan’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR775371).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR775370>