Zacharia Ahmed v Ardex Australia Pty Ltd

[2024] FWC 2233

[2024] FWC 2233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Zacharia Ahmed
v

Ardex Australia Pty Ltd

(C2024/3887)

DEPUTY PRESIDENT DOBSON BRISBANE, 20 AUGUST 2024

Application to deal with contraventions involving dismissal – s587(3)(a) - application dismissed

1. This decision relates to an application by Mr Zacharia Ahmed (the Applicant) pursuant to s.365 of the Fair Work Act2009 (Cth) (Act) against his former employer, Ardex Australia Pty Ltd (the Respondent) filed on 13 June 2024.

Background

1. The matter was allocated to me on 29 July 2024 for determination of the Respondent’s Jurisdictional Objection. On 30 July 2024, I issued directions for the filing of material. The directions included both the date and time for the determinative conference/hearing and a requirement that the Applicant file material by no later than 4:00pm (AEST) on 13 August 2024. Mr Ahmed failed to comply with this direction.

1. On 13 August 2024, the Applicant contacted the Commission on the Commission’s helpline and was transferred to my Chambers. The Applicant stated that he would require an extension to file his material. My Associate informed Mr Ahmed that he was required to put any extension request in writing to Chambers, copied to the Respondent as per the instructions contained within the directions and that no extension would be granted over the phone. Mr Ahmed was also informed that any extension request may need to be supported by evidence regarding why he required the extension.

1. On 15 August 2024, the Respondent contacted Chambers to enquire whether Mr Ahmed had filed his material as directed. The following day my Chambers wrote to Mr Ahmed as follows:

“Dear Mr Ahmed 

Directions were issued on 30 July 2024.

Paragraph [2] of the Directions required you to file your material by no later than 4:00pm AEST on 13 August 2024. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 4:00pm AEST on 19 August 2024.

In the absence of any material filed by the Applicant, the matter may be determined without further reference to them, and the Commission will consider dismissing the application pursuant to s.587 of the Fair Work Act 2009, with the application having no reasonable prospects of success for want of prosecution. Any decision by the Commission must be published on the public website.

Mr Ahmed, if you do not wish to proceed with your application, you can advise chambers as such in writing by email, or by filing a form F50 – Notice of discontinuance.“

1. No response was received from Mr Ahmed.

1. My Chambers again wrote to Mr Ahmed on 20 August 2024, noting that he had not responded to the previous correspondence from Chambers as follows:

“Dear Mr Ahmed

It is noted that we did not receive a response to our correspondence dated 16 August 2024, which required a response from you before 4:00pm AEST on 19 August 2024. It is the Deputy President’s current view that your general protections application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your claim.

If you wish to proceed with your application, you must make contact with us by 4:00pm (AEST/QLD) today. If we do not hear from you by that time, your application may be dismissed without further notice to you. You may contact us by email ([e-mail]).

I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a publicly available decision must be published on the Fair Work Commission’s website.

Alternatively, if you do not wish to proceed with your application you can inform us, by reply email, that you wish to discontinue your application.”

Consideration

1. Section 587 of the Act is 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 general protections 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.”

1. I note that Act does not limit the reasons when the FWC may dismiss an application[1] and further that an application made under s.365 may not be dismissed on the basis it is frivolous or vexatious,[2] nor because it has no reasonable prospects of success.[3] In considering further whether the Applicant’s application should be dismissed on the initiative of the FWC,[4] I am satisfied that the Applicant unreasonably failed to comply with the requirement to file his materials in accordance with the directions. I consider that the failure was unreasonable for the following reasons:

   (A)The Applicant has repeatedly failed to offer any reasonable explanation for his failure to comply with the directions.

   (B)I consider that the Applicant has been afforded multiple reasonable opportunities to redress his non-compliance but has failed to do so.

2. My discretion to dismiss the Applicant’s general protections application under s.587(3)(a) has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of the Applicant to respond to communications from my Chambers, to provide a reasonable explanation for his failure to comply with directions, his repeated failure to file materials and to comply with those directions.

Conclusion

1. For these reasons, I consider that it is appropriate to dismiss the Applicant’s application under s.587(3)(a) for want of prosecution. Pursuant to s.587(3)(a), the Applicant’s general protections application is dismissed.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth) s.587(1).

[2] Ibid s587(2)(a).

[3] Ibid s587(2)(b).

[4] Ibid s.587(3)(a).

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