Zakaria Benotmane v Drive Yello Pty Ltd

[2019] FWC 7480

[2019] FWC 7480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Zakaria Benotmane
v
Drive Yello Pty Ltd
(C2019/4947)

DEPUTY PRESIDENT CROSS SYDNEY, 31 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] On 12 August, 2019, Mr Zakaria Benotmane (the “Applicant”) made an application to deal with contraventions involving dismissal, pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant claimed that he was employed by Drive Yello Pty Ltd (the “Respondent”) from May 2019, to 22 July, 2019.

[2] On 21 August, 2019, the Respondent filed an Employer’s Response (Form F8A) opposing the Application. The Respondent claimed that the Applicant was not an employee of the Respondent and was therefore not dismissed. If the Applicant was dismissed on 22 July, 2019, his application would have been one day late.

[3] On 14 October, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application to be allowed an additional period within which to file his Application would be determined. The Applicant and Respondent agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and Respondent also agreed that the Application would be determined upon the materials filed, unless either party made an application for a hearing, and that application was granted. In the Directions Hearing, the Applicant and Respondent were specifically directed to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act.

[4] The directions issued on 14 October, 2019 (“the Directions”), to the parties were in the following terms:

1. “The Applicant (Zakaria Benotmane) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 25 October 2019.

2. The Respondent (Drive Yello Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 15 November 2019.

3. The Applicant (Zakaria Benotmane) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 22 November 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.” (Original emphasis).

[5] No materials were received by 25 October, 2019, pursuant to Direction 1, nor was there any explanation for the delay.

[6] On 28 October, 2019, my Chambers received correspondence from the Respondent, in the following terms:

“I refer to the Directions made by Deputy President Cross on 4 October 2019.

In accordance with the Directions, the Applicant was required to file and serve an outline of submissions, witness statements and any other documentary material on which he seeks to rely in respect of his out of time application, by last Friday, 25 October 2019.

The Respondent has not been served with any documents by the Applicant.

If the Applicant has filed the documents with the Fair Work Commission in compliance with the Directions, we would kindly request that you please forward us a copy.

If the Applicant has not filed the documents in compliance with the Directions, the Respondent seeks to have the matter dismissed.”

[7] On the same date, the following correspondence was issued from my Chambers to the Applicant:

“Chambers can confirm that, to date, no such materials have been filed by you pursuant to the Directions of  4 October 2019 (which were confirmed on 14 October 2019).

In the circumstances, you are directed to file your materials in support of your application by 4.00pm tomorrow (29 October 2019).  If no correspondence is received from you by this date and time, your application will be dismissed without further recourse to you.

Alternatively, if you no longer wish to pursue your application against your former employer, kindly file a Form F50 (Notice of Discontinuance) with Chambers to confirm that this is your position.” (Original emphasis).

[8] Again, no such material was filed by the Applicant on 29 October, 2019, nor did the Applicant provide any explanation for the delay.

[9] On 30 October, 2019, my Chambers received further correspondence from the Respondent in the following terms:

“I refer to the below emails.

In accordance with your email dated 28 October, Mr Benotmane was allowed until 4pm yesterday, 29 October to file any material in support of his application with the Commission.

The Respondent has still not been served with any material by Mr Benotmane.

If Mr Benotmane has produced any material to the Commission, we would appreciate it if you could please forward us a copy of that material.

If Mr Benotmane has not produced any material to the Commission, we request that his application be dismissed as indicated in your below email.

I have copied Mr Benotmane in on this email.”

[10] To date, there has been no further communication from the Applicant.

[11] Section 587(1) of the Act provides:

“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.

(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.”

[12] The words, ‘Without limiting when FWC may dismiss an application,’ at the commencement of s.587(1) of the Act make it clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) or (c).

[13] The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission. So much so is evident by the express language used in s.587(3)(a) of the Act. Further, as Deputy President Colman observed in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy[2019] FWC 6264, at paragraph [19]:

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”

[14] The Applicant has provided no reason whatsoever, let alone a sufficient reason, for his failure to file his outline of submissions and any supporting materials, pursuant to the Directions. He has displayed, in my view, a complete indifference to prosecuting his claim.

[15] Given the circumstances described above, I am satisfied that I should exercise my discretion under s.587(3)(a) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal. Accordingly, the Directions of 14 October, 2019, are formally discharged.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713835>